Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Ocean Wind 1 Wind Energy Facility Offshore of New Jersey, 64868-65009 [2022-23200]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 206 (Wednesday, October 26, 2022)]
[Proposed Rules]
[Pages 64868-65009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23200]



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Vol. 87

Wednesday,

No. 206

October 26, 2022

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Ocean Wind 1 Wind Energy Facility 
Offshore of New Jersey; Proposed Rule

Federal Register / Vol. 87, No. 206 / Wednesday, October 26, 2022 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 221020-0223]
RIN 0648-BL36


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Ocean Wind 1 Wind Energy 
Facility Offshore of New Jersey

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

ACTION: Proposed rule; proposed incidental take regulations; proposed 
Letter of Authorization; request for comments.

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SUMMARY: NMFS has received a request for Incidental Take Regulation 
(ITR) and associated Letter of Authorization (LOA) from Ocean Wind, LLC 
(Ocean Wind), a subsidiary of Orsted Wind Power North America, LLC's 
(Orsted) and a joint venture partner of the Public Service Enterprise 
Group Renewable Generation, LLC (PSEG), for the incidental take of 
small numbers of marine mammals during the construction of an offshore 
wind energy facility (Ocean Wind 1) in a designated lease area on the 
Outer Continental Shelf (OCS-A-0498) offshore of New Jersey. The 
requested ITR would govern the authorization of take, by both Level A 
and Level B harassment, of small numbers of marine mammals over a 5-
year period incidental to construction-related pile driving activities 
(impact and vibratory), potential unexploded ordnances or munitions and 
explosives of concern (UXOs/MECs) detonation, and high-resolution 
geophysical (HRG) site characterization surveys conducted by Ocean Wind 
in Federal and State waters off of New Jersey for the Ocean Wind 1 
offshore wind energy facility. A final ITR would allow for the issuance 
of a LOA to Ocean Wind for a 5-year period. As required by the Marine 
Mammal Protection Act (MMPA), NMFS requests comments on its proposed 
rule. NMFS will consider public comments prior to making any final 
decision on the promulgation of the requested ITR and issuance of the 
LOA; agency responses to public comments will be summarized in the 
final notice of our decision.

DATES: Comments and information must be received no later than November 
25, 2022.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to www.regulations.gov and enter NOAA-NMFS-2022-
0109 in the Search box. Click on the ``Comment'' icon, complete the 
required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of Ocean Wind's Incidental Take Authorization (ITA) 
application and supporting documents, as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems accessing these documents, please call the contact listed 
above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    This proposed rule would establish a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take of marine mammals incidental to the construction activities within 
the mid-Atlantic (New Jersey) region of the U.S. East Coast, 
specifically in and around lease area OCS-A-0498. We received a 
petition from Orsted's subsidiary, Ocean Wind requesting the 5-year 
regulations to construct the Ocean Wind 1 offshore wind energy 
facility. During the construction of Ocean Wind 1, some activities may 
cause the harassment (``take'') of marine mammals. Take would occur by 
Level A and/or Level B harassment incidental to construction 
activities. Please see the Legal Authority for the Proposed Action 
section below for definitions of harassment.

Legal Authority for the Proposed Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated, and notice is provided to the public.
    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, the availability of the species or stocks for taking for 
certain subsistence uses (referred to as ``mitigation''), and 
requirements pertaining to the mitigation, monitoring and reporting of 
the takings are set forth. The definitions of all applicable MMPA 
statutory terms cited above are included below.
    Section 101(a)(5)(A) of the MMPA and the implementing regulations 
at 50 CFR part 216, subpart I provide the legal basis for proposing 
and, if appropriate, issuing this rule containing 5-year regulations 
and associated LOA. As directed by this legal authority, this proposed 
rule contains mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Proposed Rule

    The following is a summary of the major provisions found within 
this proposed rule regarding Ocean Wind's construction activities. 
These measures include:
     Establishing a seasonal moratorium on impact pile driving 
during the months of highest North Atlantic right whale (Eubalaena 
glacialis) presence in the project area (January 1-April 30);
     Establishing a seasonal moratorium on any unexploded 
ordnances or munitions and explosives of concern (UXOs/MECs) 
detonations, that are determined to be necessary, during the months of 
highest North Atlantic right whale present in the project area (January 
1-April 30);

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     Requiring UXO/MEC detonations to only occur during hours 
of daylight and not during hours of darkness or nighttime;
     Conducting both visual and passive acoustic monitoring by 
trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and 
Passive Acoustic Monitoring (PAM) operators before, during, and after 
the in-water construction activities;
     Establishing harassment zones that correspond to 
underwater noise levels that could cause injury and behavioral 
disturbances;
     Establishing clearance and shut down zones for all in-
water construction activities to prevent or reduce Level A harassment 
and minimize Level B harassment;
     Requiring the use of sound attenuation device(s) during 
all impact pile driving and UXO/MEC detonations to reduce noise levels;
     Delaying the start of pile driving if a North Atlantic 
right whale is observed at any distance by the PSO on the pile driving 
or dedicated PSO vessels;
     Delaying the start of pile driving if other marine mammals 
are observed entering or within their respective clearance zones;
     Shutting down pile driving (if feasible) if a North 
Atlantic right whale is observed or if other marine mammals enter their 
respective shut down zones;
     Implementing soft starts for impact pile driving and using 
the least hammer energy possible;
     Implementing ramp-up for high-resolution geophysical (HRG) 
site characterization survey equipment;
     Requiring PSOs to continue to monitor for 30 minutes after 
any impact pile driving occur and for any and all UXO detonations;
     Increasing awareness of North Atlantic right whale 
presence through monitoring of the appropriate networks and Channel 16, 
as well as reporting any sightings to the sighting network;
     Implementing numerous vessel strike avoidance measures;
     A requirement to implement noise attenuation system(s) 
during all impact pile driving and UXO/MEC detonations;
     Sound field verification requirements during impact pile 
driving and UXO/MEC detonation to measure in situ noise levels for 
comparison against the model results; and
     Removing gear from the water during fisheries monitoring 
research surveys if marine mammals are considered at-risk or are 
interacting with gear.

National Environmental Policy Act (NEPA)

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate the proposed action (i.e., promulgation of 
regulations and subsequent issuance of a 5-year LOA) and alternatives 
with respect to potential impacts on the human environment.
    Accordingly, NMFS proposes to adopt the Bureau of Ocean Energy 
Management's (BOEM) Environmental Impact Statement (EIS), provided our 
independent evaluation of the document finds that it includes adequate 
information analyzing the effects of authoring the proposed take of 
marine mammals on the human environment. NMFS is a cooperating agency 
on BOEM's EIS. BOEM's draft EIS (Ocean Wind 1 Draft Environmental 
Impact Statement (DEIS) for Commercial Wind Lease OCS-A 0498) was made 
available for public comment on June 24, 2022 at https://www.boem.gov/renewable-energy/state-activities/ocean-wind-1. The DEIS had a 45-day 
public comment period (87 FR 37883, June 24, 2022), plus a 15-day 
extension (87 FR 48038, August 5, 2022) for a total of 60-days; the 
comment period was open from June 24, 2022 to August 23, 2022. 
Additionally, BOEM held three virtual public hearings on July 14, 2022, 
July 20, 2022, and July 26, 2022.
    Information contained within Ocean Wind's ITA application and this 
Federal Register document collectively provide the environmental 
information related to these proposed regulations and associated 5-year 
LOA for public review and comment. NMFS will review all comments 
submitted in response to this document prior to concluding our NEPA 
process or making a final decision on the requested 5-year LOA.

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

    This project is covered under Title 41 of the Fixing America's 
Surface Transportation Act, or ``FAST-41.'' FAST-41 includes a suite of 
provisions designed to expedite the environmental review for covered 
infrastructure projects, including enhanced interagency coordination as 
well as milestone tracking on the public-facing Permitting Dashboard. 
FAST-41 also places a 2-year limitations period on any judicial claim 
that challenges the validity of a Federal agency decision to issue or 
deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-
6(a)(1)(A)).
    Ocean Wind's proposed project is listed on the Permitting Dashboard 
(https://www.permits.performance.gov/ gov/). Milestones and schedules 
related to the environmental review and permitting associated with the 
Ocean Wind 1 project can be found at https://www.permits.performance.gov/permitting-projects/ocean-wind-project.

Summary of Request

    On October 1, 2021, NMFS received a request from Ocean Wind for the 
promulgation of a 5-year ITR and issuance of an associated LOA to take 
marine mammals incidental to the construction activities associated 
with the Ocean Wind 1 Offshore Wind Energy Facility off of New Jersey 
in the BOEM Lease Area Outer Continental Shelf (OCS)-A-0498 Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf.
    Ocean Wind's request is for the incidental, but not intentional, 
take of a small number of 17 marine mammal species (comprising 18 
stocks) by Level B harassment (for all 18 marine mammal species and 
stocks) and by Level A harassment (for 10 marine mammal species or 
stock). Neither Ocean Wind nor NMFS expects serious injury or mortality 
to result from the specified activities.
    We received subsequent applications and supplementary materials on 
November 12, 2021, December 3, 2021, December 28, 2021, January 5, 
2022, January 20, 2022, and February 8, 2022 in response to questions 
and comments submitted about various aspects of the previously received 
iterations. The final version of the application was deemed adequate 
and complete on February 11, 2022 and is available on NMFS' website at 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility.
    A Notice of Receipt (NOR) for the application was published on 
March 7, 2022 in the Federal Register (87 FR 12666) for a 30-day public 
comment period. This public comment period closed on April 6, 2022. 
During the NOR public comment period, NMFS received two letters from 
environmental non-governmental organizations (ENGOs): Clean Ocean 
Action (COA) and the Natural Resource Defense Council (NRDC), on behalf 
of several other ENGOs. NMFS has reviewed all submitted material and 
has taken these into consideration during the drafting of this proposed 
rulemaking.
    NMFS has previously issued three Incidental Harassment 
Authorizations (IHAs), including a renewed IHA, to

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Ocean Wind for related work regarding high resolution site 
characterization surveys (see 82 FR 31562, July 7, 2017; 86 FR 26465, 
May 14, 2021; and 87 FR 29289, May 13, 2022 (renewal)). To date, Ocean 
Wind has complied with all the requirements (e.g., mitigation, 
monitoring, and reporting) of the previous IHAs and information 
regarding their monitoring results may be found in the Estimated Take 
section. These monitoring reports can be found on NMFS' website: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered right 
whales from vessel collisions, which are a leading cause of the 
species' decline and a primary factor in an ongoing Unusual Mortality 
Event (87 FR 46921). Should a final vessel speed rule be issued and 
become effective during the effective period of this ITR (or any other 
MMPA incidental take authorization), the authorization holder would be 
required to comply with any and all applicable requirements contained 
within the final rule. Specifically, where measures in any final vessel 
speed rule are more protective or restrictive than those in this or any 
other MMPA authorization, authorization holders would be required to 
comply with the requirements of the rule. Alternatively, where measures 
in this or any other MMPA authorization are more restrictive or 
protective than those in any final vessel speed rule, the measures in 
the MMPA authorization would remain in place. The responsibility to 
comply with the applicable requirements of any vessel speed rule would 
become effective immediately upon the effective date of any final 
vessel speed rule and, when notice is published of the effective date, 
NMFS would also notify Ocean Wind if the measures in the speed rule 
were to supersede any of the measures in the MMPA authorization such 
that they were no longer applicable.

Description of the Specified Activities

Overview

    Ocean Wind has proposed to construct and operate a 1,100 megawatt 
(MW) wind energy facility (known as Ocean Wind 1) in State and Federal 
waters found in the Atlantic Ocean in lease area OCS-A-0498. The Ocean 
Wind 1 project would allow the State of New Jersey to meet its 
renewable energy goals under the New Jersey Offshore Wind Economic 
Development Act (OWEDA). OWEDA was signed into law in August 2010 and 
required the New Jersey Board of Public Utilities to establish a 
program to incentivize the development of offshore wind facilities and 
structures. On January 31, 2018, Governor Phil Murphy signed Executive 
Order #8 which further directed all New Jersey State Agencies with 
described responsibilities under OWEDA to work to meet a goal of 3,500 
MW of energy from offshore wind by 2030 (https://nj.gov/infobank/eo/056murphy/pdf/EO-8.pdf). Then, in November 19, 2019, Executive Order 
#92 was signed and increased New Jersey's offshore wind goal of 3,500 
MW by 2030 to 7,500 MW by 2035 (https://nj.gov/infobank/eo/056murphy/pdf/EO-92.pdf). More information on New Jersey's offshore wind goals 
can be found at: https://www.nj.gov/dep/offshorewind/about.html.
    Ocean Wind's project would consist of several different types of 
permanent offshore infrastructure, including wind turbine generators 
(WTGs; e.g., the GE Haliade-X 12 MW) and associated foundations, 
offshore substations (OSS), offshore substation array cables, and 
substation interconnector cables. Overall, Ocean Wind plans to install 
98 WTGs and 3 offshore substations (OSS) via impact pile driving; the 
temporary installation and removal of cofferdams to assist in the 
installation of the export cable route by vibratory pile driving; 
several types of fishery and ecological monitoring surveys; the 
placement of scour protection; trenching, laying, and burial activities 
associated with the installation of the export cable route from OSSs to 
shore-based converter stations and inter-array cables between turbines; 
HRG vessel-based site characterization surveys using active acoustic 
sources with frequencies of less than 180 kHz; and the potential 
detonation of up to ten UXOs/MECs of different charge weights, as 
necessary. Vessels would transit within the project area, and between 
ports and the wind farm to transport crew, supplies, and materials to 
support pile installation. All offshore cables will connect to onshore 
export cables, substations, and grid connections, which would be 
located in Ocean County and Cape May County found in New Jersey.
    Marine mammals exposed to elevated noise levels during impact and 
vibratory pile driving, potential detonations of UXOs, or site 
characterization surveys, may be taken, by Level A harassment and/or 
Level B harassment, depending on the specified activity. At the time of 
writing this proposed notice, Ocean Wind 1 had not finalized design 
plans; however, they have indicated the project would consist of either 
all monopile foundations (a total of 101 8/11-m tapered piles to 
support all WTGs and the 3 OSSs) or monopiles to support the WTGs 
(n=98) and jacket foundations with pin piles to support the three OSSs 
using a total of 48 pin piles (16 pin piles per OSS).

Dates and Duration

    Ocean Wind anticipates activities resulting in harassment to marine 
mammals occurring throughout all five years of the proposed rulemaking. 
Project activities are expected to begin in August 2023 and continue 
through July 2028. Ocean Wind anticipates the following construction 
schedule over the five year period (Figure 1). Ocean Wind has noted 
that these are the best and conservative estimates for activity 
durations (solid arrows), but that the schedule may shift due to 
weather, mechanical, or other related delays (dashed arrows). If 
promulgated, the proposed rule and subsequently issued 5-year LOA would 
be effective from 2023-2028.

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WTG and OSS Pile Installation (Impact Pile Driving)
    The installation of monopiles and pin piles related to the 
construction of up to 98 tapered 8/11-m diameter WTGs (monopile 
foundations) and 3 OSSs (either consisting of up to 3 monopile or 3 
jacket foundations using 48 pin piles total) would occur from May 
through December and only in Years 1 and 2, depending on local and 
environmental conditions.
    Ocean Wind's present uncertainty with which construction scenario 
would be employed for OSS installation has resulted in two possible 
timelines of either 52 or 116 days of installation for all foundation 
piles related to WTGs and OSSs (monopiles or pin piles). In the 52-day 
scenario, the schedule assumes a full monopile build-out with the 
installation of two monopiles per day for WTGs (49 days total) and one 
monopile per day for each OSS (3 days total). In the 116-day scenario, 
the schedule assumes a joint monopile-jacket foundation build-out, with 
the installation of up to one monopile per day for WTGs (98 days total) 
and up to three pin piles being installed per day over 6 days per OSS 
(18 days total). Ocean Wind notes in their application that technical 
problems, such as pile refusal, are not anticipated but could result in 
additional pile driving days.
    Each monopile is expected to require four hours of impact pile 
driving to install, with a maximum of two monopiles being installed per 
day. However, in some cases, only one monopile may be installed on some 
days. Each pin pile is expected to require four hours of impact pile 
driving, with a maximum of three pin piles being installed per day.
    During the installation of monopile foundations, Ocean Wind has 
requested 24-hour pile driving, which would consist of intermittent 
impact pile driving that could occur anytime within a 24-hour timeframe 
and would occur for a total 8 hours of active pile driving plus 1 hour 
of equipment mobilization (9 hours total). However, only the maximum 
estimated number of piles per day (two monopiles) would be installed in 
any 24-hour period. Furthermore, no concurrent impact pile driving (of 
either monopiles or pin piles) is anticipated to occur during this 
proposed project.
    Ocean Wind anticipates that the first WTG would become operational 
in 2024 as each turbine would be powered on after installation is 
completed and all necessary components, such as array cables, OSSs, 
export cable routes, and onshore substations are installed.
Temporary Cofferdam Installation and Removal (Vibratory Pile Driving)
    The installation and removal of up to seven temporary cofferdams at 
various transition points for the export cable routes, as needed, would 
primarily occur between October through March, although Ocean Wind does 
indicate that some removal of cofferdams may occur during the months of 
April or May.
    Installation of each cofferdam would require a maximum of 12 hours 
via vibratory driving while removal using a vibratory extractor would 
require 18 hours. All seven cofferdams would necessitate 2 days for 
installation and 2 days for removal (4 days total) with only 12 hours 
of vibratory removal occurring per day. This equates to a total of 28 
days for all installation and removal. NMFS notes that these 28 days 
may not be consecutive but would be the total number expected during 
the entire construction period.
High-Resolution Geophysical Site Characterization Surveys
    High-resolution geophysical site characterization surveys would 
occur annually, with durations dependent on the activities occurring in 
that year (i.e., construction year versus a non-construction year). 
Specifically, Ocean Wind estimates a maximum of 88 days of surveys to 
occur annually in Years 1, 4, and 5 (the pre- and post-construction 
years); and 180 days annually during Years 2 and 3 (the during-
construction years). This estimates approximately 624 days total over 
the 5-year period. More specifically, in Years 1, 4, and 5, up to 47.5 
survey days are expected in the offshore Wind Farm area and 40.5 survey 
days would occur in the export cable route areas. During Years 2 and 3, 
up to 180 days are planned with variable survey effort expected, but 
Ocean Wind anticipates approximately 78 days annually would take place 
within the export cable route areas and 102 days of survey effort 
during both of these years would occur in the offshore Wind Farm area. 
These HRG survey schedules, as proposed by Ocean Wind, do account for 
periods of down-time

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due to inclement weather or technical malfunctions.
    Ocean Wind anticipates site characterization surveys occurring in 
the project area and along the two potential export cable routes to the 
landfall locations (Oyster Creek, Island Beach State Park in Barnegat 
Bay, Farm Property, and BL England) specified in the ITA application 
(see Figure 1-3 in the ITA application; Ocean Wind, 2022b). HRG surveys 
would utilize up to three vessels working concurrently across the 
project area over a 24-hour period. Up to three vessels would also 
perform nearshore surveys; however, these vessels would operate for 12-
hours and during daylight only. At any time, all three of the 24-hour 
vessels may work across different parts of the project area or within 
the same geographic area. In calculating the HRG vessel effort for the 
purposes of estimating marine mammal take, it was determined that each 
day that any given survey vessel is operating would count as a single 
survey day. For example, if all three vessels are operating in the two 
export cable routes and Lease Area concurrently, this would count as 3 
survey days, regardless of the locations that are being surveyed.
Unexploded Ordnances or Munitions and Explosives of Concern (UXOs/MECs)
    Ocean Wind anticipates the potential presence of UXOs/MECs in and 
around the project area during the 5 years of the proposed rule. These 
UXOs/MECs are defined as explosive munitions (e.g., shells, mines, 
bombs, torpedoes, etc.) that did not explode or detonate when they were 
originally deployed or that were intentionally discarded to avoid 
detonations on land. Typically, these munitions could be left behind 
following Navy military training, testing, or operations. Ocean Wind 
primarily plans for avoidance or relocation of any UXOs/MECs found 
within the project area, when possible. In some cases, it may also be 
possible that the UXO/MEC could be cut up to extract the explosive 
components. However, Ocean Wind notes this may not be possible in all 
cases and in situ disposal may be required. If in situ disposal is 
required, all disposals will be performed using low-order methods 
(deflagration), which are considered less impactful to marine mammals, 
first and then would be elevated up to high-order removal (detonation), 
if this approach is determined to be necessary. In the event that high-
order removal is needed, all detonations would only occur during 
daylight hours.
    Based on preliminary survey data, Ocean Wind conservatively 
estimates a maximum of 10 days of UXO/MEC detonation may occur, with up 
to one UXO/MEC being detonated per day and a maximum of 10 UXOs/MECs 
being detonated over the entire 5-year period. NMFS notes that UXOs/
MECs may be detonated at any point in any year as they are found by 
project developers; however, no UXOs/MECs would be detonated in Federal 
waters between November 1st and April 30th of any year during the 
rulemaking.

Specific Geographic Region

    Ocean Wind's specified activities would occur in the Northeast U.S. 
Continental Shelf Large Marine Ecosystem (NES LME), an area of 
approximately 260,000 km\2\ (64,247,399.2 acres) from Cape Hatteras in 
the south to the Gulf of Maine in the north. Specifically, the lease 
area and cable corridor are located within the Mid-Atlantic Bight 
subarea of the NE LME which extends between Cape Hatteras, North 
Carolina, and Martha's Vineyard, Massachusetts, extending westward into 
the Atlantic to the 100 m isobath. In the Middle Atlantic Bight, the 
pattern of sediment distribution is relatively simple. The continental 
shelf south of New England is broad and flat, dominated by fine grained 
sediments. Most of the surficial sediments on the continental shelf are 
sands and gravels. Silts and clays predominate at and beyond the shelf 
edge, with most of the slope being 70-100 percent mud. Fine sediments 
are also common in the shelf valleys leading to the submarine canyons. 
There are some larger materials, left by retreating glaciers, along the 
coast of Long Island and to the north and east.
    Primary productivity is highest in the nearshore and estuarine 
regions, with coastal phytoplankton blooms initiating in the winter and 
summer, although the timing and spatial extent of blooms varies from 
year to year. The relatively productive continental shelf supports a 
wide variety of fauna and flora.
    Ocean Wind 1's proposed activities would occur in the Ocean Wind 
Lease Area OCS-A 0498 (see Figure 2 in this proposed rule and see 
Figures 1-1 in the ITA application for more detail; Ocean Wind, 2022b), 
within the New Jersey WEA of BOEM's Mid-Atlantic Planning Area. Ocean 
Wind's 277 square kilometer (km\2\; 68,450 acres) Wind Farm Area is 
found within the larger 306 km\2\ (75,525 acre) New Jersey Wind Energy 
Area (WEA). The Ocean Wind Wind Farm Area (WFA) is located 
approximately 13 nautical miles (nm; 24.08 km) southeast of Atlantic 
City, New Jersey. Noise from the specified activities will extend into 
the surrounding areas and is included in the specified geographic 
region. For consistency throughout this proposed rulemaking, NMFS will 
be referring to the Wind Farm Area and export cable corridors where 
development of the Ocean Wind 1 offshore wind facility would occur as 
the ``project area''. At its nearest point, Ocean Wind 1 would be just 
over 13 nm (15 miles (mi)) southeast of Atlantic City, New Jersey. The 
water depths range from 15-36 meters (m; 49-118 feet (ft)) in the 
Offshore Wind Farm Area and approximately 40 m (131.23 ft) in the 
export cable route areas. The seabed has a slope of less than 1 degree 
towards the southeast. The sedimentation in the area is predominantly 
sandy with some thin clay layers. Ocean Wind has noted that the average 
temperature of the water column (the upper 10-15 m) is higher in June 
to September, which increases the sound speeds and creates a downward 
refracting environment that propagates sounds more directly to the 
seafloor. However, from December to March, an increase in wind mixing 
and a reduction in solar energy creates a sound speed profile that is 
more uniform with depth.
    As part of the construction activities, up to seven temporary 
cofferdams may be constructed where the two potential export cable 
routes exit the seabed. The onshore landing locations for Ocean Wind 
1's export cable routes would be Oyster Creek, Island Beach State Park 
Barnegat Bay, Farm Property, and BL England, with grid connections 
being made in BL England and Oyster Creek (Figure 2). Up to 98 wind 
turbines would be constructed alongside three offshore-substations 
(OSSs). Inter-array cables would connect all WTGs to OSSs with the 
export cables connecting the wind facility to the cofferdam locations 
nearshore (see Figure 3 in this proposed ITA and see Figures 1-2 in the 
rulemaking application for more detail).
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

Detailed Description of Specified Activities

    Below, we provide detailed descriptions of Ocean Wind's activities, 
explicitly noting those that are anticipated to result in the take of 
marine mammals and for which incidental take authorization is 
requested. Additionally, a brief explanation is provided for those 
activities that are not expected to result in the take of marine 
mammals.
Impact Pile Driving--WTGs
    Impact pile driving, which is expected to result in the take of 
marine mammals, is planned for both WTGs (monopiles) and OSS 
installation (monopiles or pin piles) and will be

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used to support the installation of both permanent and temporary 
structures.
    Ocean Wind plans to use a monopile with transition piece (or 
alternatively a one-piece foundation where the transition piece is part 
of the monopile) design for all of the WTG locations. This reflects the 
planned type of foundation based on the preliminary site data obtained 
for the Project and was selected as it is the most economical solution, 
the simplest and quickest to install, and requires the least seabed 
disturbance. Pile driving is only planned to occur from May through 
December (Years 1 and 2) to reduce North Atlantic right whale 
interactions, further discussion of this may be found in the Proposed 
Mitigation section. The monopile will be 11-meters (m; 36-ft) in 
diameter at the seafloor with a 6-m (20-ft) diameter flange, and will 
taper to a top diameter of 8 m. Since drafting the Ocean Wind COP (Vol. 
I, Table 6.1.1-3; Ocean Wind, 2021), project development has continued 
and for design development of the monopile foundations, a monopile 
foundation with maximum outer diameter at seabed of 11-m (36-ft) is 
being carried forward.
    The monopile foundations will be installed by one or two heavy lift 
or jack-up vessels. The main installation vessel(s) will likely remain 
at the Offshore Wind Farm during the installation phase and transport 
vessels, tugs, and/or feeder barges will provide a continuous supply of 
foundations to the Offshore Wind Farm. If appropriate vessels are 
available, the foundation components could be picked up directly in the 
marshaling port by the main installation vessel(s).
    Each vertical monopile foundation will consist of a single hollow 
steel cylinder pile, up to 11-m (36-ft) in diameter with a 10.3-
centimeter (4-inch) wall thickness. As mentioned above, the monopiles 
are tapered piles with 8-m top diameter, 11-m bottom diameter, and a 
tapered section near the water line (referred to as an 8/11 monopile 
throughout this proposed notice). The installation of all 98 WTGs would 
only utilize tapered monopile foundations with one monopile being used 
per WTG.
    The monopiles will be installed using an impact hammer, an IHC-4000 
or IHC S2500 kilojoule (kJ) hammer, or similar, with a power pack 
capacity of 6,000 kilowatts (kW), to a maximum expected penetration 
depth of 50-m (164-ft). Up to two monopiles will be installed per day 
(estimated at 4 hours of active pile driving per monopile) for an 
estimated total of 8 hours per day (assuming active pile driving of two 
monopiles). A total of 98 monopiles will be installed for WTGs. Three 
additional monopiles may be installed as foundations for the OSSs. 
Concurrent monopile installation at more than one location is not 
planned by Ocean Wind and was not analyzed in the ITA application.
    Pile installation would occur during daylight hours and could, if 
Ocean Wind meets NMFS requirements (see Proposed Mitigation section), 
potentially occur during nighttime hours when, (1) a pile installation 
is started during daylight and, due to unforeseen circumstances, would 
need to be finished after dark and (2) for new piles, after dark 
initiation of pile driving is necessary to meet schedule requirements 
due to unforeseen delays. To be able to install WTG and OSS monopile 
foundations, impact pile driving 24-hours per day is deemed necessary 
when considering the amount of time required to install the foundations 
in comparison to the time available for installation when factoring in 
various limitations. Based on similar projects under ideal conditions 
and consistent with the assumption that up to two foundations could be 
installed in a single day, installation of a single pile at a minimum 
would involve a 1-hour pre-clearance period, 4 hours of piling, and 4 
hours to move to the next piling location where the process would begin 
again. This results in an estimated 9 hours of installation time per 
monopile for the Ocean Wind project, or 909 total hours for 98 WTG 
foundations and three OSS foundations, assuming ideal conditions for 
all installations. Once construction begins, Ocean Wind would proceed 
as rapidly as possible to reduce the total duration of construction, 
limiting crew transfers and vessel trips by condensing the work as much 
as possible. Particularly in low North Atlantic right whale abundance 
months, completing more work in the summer means less overlap with 
higher density time periods.
Impact Pile Driving--OSSs
    A piled jacket foundation, being considered for the OSSs only, is 
formed of a steel lattice construction (comprising tubular steel 
members and welded joints) secured to the seabed by hollow steel pin 
piles attached to the jacket feet. Unlike monopiles, there is no 
separate transition piece. The transition piece and ancillary 
components are fabricated as an integrated part of the jacket. Each OSS 
will have either a single 8/11-m diameter monopile foundation (as used 
for WTG foundations) or a jacket foundation consisting of 16 2.44-m 
diameter vertical pin piles installed with an impact hammer, IHC S-2500 
kJ hammer, or similar. Each of the piled jacket foundations will 
consist of four pin piles per leg (16 pin piles total) per OSS. Up to 
three vertical pin piles will be installed each day during construction 
of the OSSs, and it is expected to take 4 hours per piling. Six days of 
installation per OSS foundation is anticipated. The pin piles will be 
driven to a maximum expected depth of 70 m (230 ft). A total of 48 pin 
piles (16 pin piles x 3 OSSs) or three monopiles could be installed for 
the OSSs.
Vibratory Pile Driving--Temporary Cofferdams
    The in-water use of vibratory pile driving is expected to result in 
the take of marine mammals. Unlike impact pile driving, vibratory pile 
driving is planned to exclusively occur during the potential 
installation and removal of temporary cofferdams. A temporary cofferdam 
may need to be installed seaward of the horizontal directional drilling 
(HDD) landfall locations where the export cable exits from the seabed. 
The cofferdam, if required, may be installed as either a sheet-piled 
structure into the seafloor or a gravity cell structure placed on the 
seafloor using ballast weight. A vibratory hammer will be used to drive 
sheet pile sidewalls and end walls into the seabed. Installation of a 
cofferdam is estimated to take up to 18 hours over 2 days, with 
vibratory driving taking place for no longer than 12 hours each day 
over the installation period. Removal of the cofferdam will be 
accomplished using a vibratory extractor and is expected to take up to 
18 hours over 2 days, with no more than 12 hours of vibratory removal 
each day. Cofferdam installation/removal will take place only during 
daylight hours.
    Cofferdams are planned at the following sites: two cofferdams at 
Oyster Creek (Atlantic Ocean to Island Beach State Parks a sea-to-shore 
connection point), two cofferdams at Island Beach State Park Barnegat 
Bay (Barnegat Bay onshore as a bay-to-shore connection point), two 
cofferdams at Farm Property (bayside of Oyster Creek as a shore-to-bay 
connection point), and one cofferdam at BL England (as a sea-to-shore 
connection point). Cofferdams will necessitate minimal water to be 
temporarily pumped out for construction activities, and then 
subsequently re-flooded upon the completion of activities. Dewatering 
activities will be temporary and water drawdown will be minimal to 
prevent any permanent impacts to groundwater quality.
    Ocean Wind considered two scenarios for the cofferdams: a sheet 
pile installation and removal scenario and a

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gravity-cell structure ballasted to the seafloor. In moving forward 
with the sheet pile scenario, Ocean Wind anticipates that impacts 
relating to cofferdam installation and removal using sheet piles would 
exceed any potential impacts for the use of alternative methods (i.e., 
gravity-cells), and therefore the cofferdam estimates using the sheet 
pile approach ensures that the most conservative values are carried 
forward in this proposed action.
    In addition to the sound produced in-water from the vibratory 
driving activities, it is possible that in-air noises from the 
vibratory hammer could be produced during temporary cofferdam 
installation and removal. In-air noise is not considered a concern for 
cetaceans and in-water pinniped species, but could pose a risk to 
hauled-out seals in the area, specifically harbor seals. However, based 
on the analysis conducted in Section 1.5.4 of Ocean Wind's ITA 
application (Figure 1-8), neither Ocean Wind nor NMFS expect the in-air 
sounds produced to cause take of hauled-out pinnipeds at distances 
greater than 541 m from the cofferdam installation/removal location 
(Ocean Wind, 2022b). As all documented pinniped haul-outs are located 
further than 541 m from each of the seven cofferdam locations, no take 
of marine mammals is expected from any in-air noise component of 
vibratory pile driving. Furthermore, any additional discussion relating 
to vibratory pile driving of temporary cofferdams will refer to in-
water noise effects, unless otherwise noted.
High-Resolution Site Characterization Surveys
    Ocean Wind plans to conduct HRG surveys operating at frequencies 
less than 180 kHz in and around the Offshore Wind Farm and along 
potential export cable routes to landfall locations in New Jersey 
throughout construction and operation. Survey activities, which include 
the potential to result in the take of marine mammals, will include 
multibeam depth sounding, seafloor imaging, and shallow- and medium-
penetration sub-bottom profiling within the Offshore Wind Farm and 
export cable route area, using non-parametric equipment, including 
boomers, sparkers, and Compressed High-Intensity Radiated Pulse 
(CHIRPs).
    While the final survey plans will not be completed until 
construction contracting commences, Ocean Wind anticipates that HRG 
survey operations would be conducted 24 hours per day and up to three 
vessels may be working concurrently within this 24-hour period at a 
transit speed of approximately 4 knots. Based on Ocean Wind's past 
survey experience (i.e., knowledge of typical daily downtime due to 
weather, system malfunctions, etc.), Ocean Wind assumes 70 km average 
daily distance. On this basis, an annual total of 88 survey days 
(approximately 47.5 survey days in the Offshore Wind Farm and 40.5 
survey days in the export cable route area) is expected during Years 1, 
4, and 5. Some inter-year variance in survey locations may be expected, 
however, 88 survey days annually is anticipated regardless of location. 
During Years 2 and 3, Ocean wind anticipates up to 78 days annually of 
survey effort within the export cable route areas and up to 102 days of 
survey effort during both Years 2 and 3 to occur in the Wind Farm Area.
    Ocean Wind estimates that a total of 6,110 linear kilometers (km) 
will be needed within the Offshore Wind Farm and export cable route 
area. Survey effort will be split between the two areas: 3,000 km for 
the array cable, 2,300 km for the Oyster Creek export cable, 510 km for 
the BL England export cable, and 300 km for the OSS interconnector 
cable. During WTG and OSS construction and operation, it is anticipated 
that up to 180 survey days per year will be required, which includes up 
to 11,000 km of export cable surveys, 10,500 km of array cable surveys, 
1,065 km of foundation surveys, 250 km of WTG surveys, and up to 2,450 
km of monitoring and verification surveys. In certain shallow-water 
areas, vessels may conduct surveys during daylight hours only, with a 
corresponding assumption that the daily survey distance would be halved 
(35 km). Although, for purposes of analysis, a single vessel survey day 
is assumed to cover the maximum 70 km.
    The following acoustic sources planned for use during Ocean Wind's 
HRG survey activities that have the potential to result in incidental 
take of marine mammals:
     Shallow-penetration non-impulsive, non-Parametric SBPs 
(compressed high-intensity radiated pulses (CHIRP SBPs)) are used to 
map the near-surface stratigraphy (top 0 to 5 m (0 to 16 ft)) of 
sediment below the seabed. A CHIRP system emits sonar pulses that 
increase in frequency sweep from approximately 2 to 20 kHz over time. 
The pulse length frequency range can be adjusted to meet Project 
variables. These shallow penetration SPBs are typically mounted on a 
pole, rather than towed, either over the side of the vessel or through 
a moon pool in the bottom of the hull, reducing the likelihood that an 
animal would be exposed to the signal.
     Medium-penetration impulsive boomers are used to map 
deeper subsurface stratigraphy as needed. A boomer is a broad-band 
sound source operating in the 3.5 Hz to 10 kHz frequency range. This 
system is commonly mounted on a sled and towed behind the vessel.
     Medium-penetration impulsive sparkers are used to map 
deeper subsurface stratigraphy as needed. Sparkers create acoustic 
pulses from 50 Hz to 4 kHz omnidirectionally from the source that can 
penetrate several hundred meters into the seafloor. Sparkers are 
typically towed behind the vessel with adjacent hydrophone arrays to 
receive the return signals.
    Table 1 identifies all the representative survey equipment that 
operate below 180 kilohertz (kHz) (i.e., at frequencies that are 
audible and have the potential to disturb marine mammals) that may be 
used in support of planned geophysical survey activities, and are 
likely to be detected by marine mammals given the source level, 
frequency, and beamwidth of the equipment. Equipment with operating 
frequencies above 180 kHz (e.g., SSS, MBES) and equipment that does not 
have an acoustic output (e.g., magnetometers) will also be used but are 
not discussed further because they are outside the general hearing 
range of marine mammals likely to occur in the project area. No 
harassment exposures can be reasonably expected from the operation of 
these sources; therefore, they are not considered further in this 
proposed action.
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Potential UXO/MEC Detonations
    There is the potential that Ocean Wind could encounter UXOs/MECs. 
These include explosive munitions such as bombs, shells, mines, 
torpedoes, etc. that did not explode when they were originally deployed 
or were intentionally discarded to avoid land-based detonations. There 
are several varieties of ordnance and net explosive weights can vary 
according to type. All bombs are inert but simulate the same ballistic 
properties.
    The risk of incidental detonation associated with conducting 
seabed-altering activities such as cable laying and foundation 
installation in proximity to UXOs/MECs jeopardizes the health and 
safety of project participants. Ocean Wind follows an industry standard 
As Low as Reasonably Practicable (ALARP) process that minimizes the 
number of potential detonations (Appendix C; Ocean Wind, 2021).
    While avoidance is the preferred approach for UXO/MEC mitigation, 
there may be instances when confirmed UXO/MEC avoidance is not possible 
due to layout restrictions, presence of archaeological resources, or 
other factors that preclude micro-siting. In such situations, confirmed 
UXO/MEC may be removed through physical relocation or in situ disposal, 
the latter of which may result in the take of marine mammals. Physical 
relocation will be the preferred method but is not an option in every 
case. Selection of a removal method will depend on the location, size, 
and condition of the confirmed UXO/MEC, and will be made in 
consultation with a UXO/MEC specialist and in coordination with the 
agencies with regulatory oversight of UXO/MECs. For UXO/MECs that will 
require in situ disposal, it will be done with low-order methods 
(deflagration), high-order (detonation) of the UXO/MEC, or by cutting 
the UXO/MEC up to extract the explosive components.
    To better assess the potential UXO/MEC encounter risk, geophysical 
surveys have been and continue to be conducted to identify potential 
UXOs/MECs that have not been previously mapped. As these surveys and 
analysis of data from them are still underway, the exact number and 
type of UXOs/MECs in the project area are not yet known. As a 
conservative approach for the purposes of the impact analysis, it is 
currently assumed that up to 10 UXOs/MECs 454-kg (1000 pounds; lbs) 
charges, which is the largest charge that is reasonably expected to be 
present, may have to be detonated in place. Although it is highly 
unlikely that all ten charges would consist of this 454 kg charge, as 
the Navy uses many different sizes of smaller charges (even down to a 
few kilograms), it was determined to be the most conservative during 
analysis when analyzing the potential effects of the activity. If 
necessary, these detonations would occur on up to 10 different days 
(i.e., only one detonation would occur per day) over the 5-year 
project. In the event that high-order removal (detonation) is 
determined to be the preferred and safest method of disposal, all 
detonations would occur during daylight hours. It is expected that 
impacts from detonation would occur within the current limits defined 
for the Project Offshore Envelope, but are dependent on the soil 
conditions, burial depth, and type of UXO/MEC found.
Construction-Related Vessel Activities and Transit
    During construction of the project, Ocean Wind anticipates that an 
average of approximately 18 project-related vessels will operate during 
a typical workday in the Wind Farm Area and along the export cable 
routes. As multiple vessels may be operating concurrently, each day 
that a survey vessel is operating counts as a single survey day. For 
example, if a total of three vessels are operating with one in each of 
the two ECRs (two total) and one in the Lease Area (one total) 
concurrently, this counts as three survey days. Many of these vessels 
will remain in the Wind Farm Area or export cable route for days or 
weeks at a time, potentially making only infrequent trips to port for 
bunkering and provisioning, as needed. The actual number of vessels 
involved in the project at one time is highly dependent on the 
project's final schedule, the final design of the project's components, 
and the logistics needed to ensure compliance with the Jones Act, a 
Federal law that regulates maritime commerce in the United States. 
Table 2 below shows the number of vessels and the number of vessel 
trips anticipated during construction activities related to Ocean Wind 
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BILLING CODE 3510-22-C
    While marine mammals are known to respond to vessel noise and the 
presence of vessels in different ways, we do not expect Ocean Wind 1's 
vessel operations to result in the take of marine mammals. As existing 
vessel traffic in the vicinity of the project area off of New Jersey is 
relatively high, we expect that marine mammals in the area are likely 
somewhat habituated to vessel noise. In addition, any construction 
vessels would be stationary for significant periods of time when on-
site and any large vessels would travel to and from the site at 
relatively low speeds. Project-related vessels would be required to 
adhere to several mitigation measures designed to reduce the potential 
for marine mammals to be struck by vessels associated with the project; 
these measures are described further below (see the Proposed Mitigation 
section) and vessel strikes are neither anticipated nor authorized. As 
part of various construction related activities, including cable laying 
and construction material delivery, dynamic positioning thrusters may 
be utilized to hold vessels in position or move slowly. Sound produced 
through use of dynamic positioning thrusters is similar to that 
produced by transiting vessels, in that dynamic positioning thrusters 
are typically operated either in a similarly predictable manner or used 
for short durations around stationary activities. Sound produced by 
dynamic positioning thrusters would be preceded by, and associated 
with, sound from ongoing vessel noise and would be similar in nature; 
thus, any marine mammals in the vicinity of the activity would be aware 
of the vessel's presence, further reducing the potential for startle or 
flight responses on the part of marine mammals. Accordingly, noise from 
construction-related vessel activity, including the use of dynamic 
positioning thrusters, is not expected to result in take of marine 
mammals and Ocean Wind did not request, and NMFS does not propose to 
authorize any takes associated with construction related vessel 
activity. However, NMFS acknowledges the aggregate impacts of Ocean 
Wind 1's vessel operations on the acoustic habitat of marine mammals 
and has considered it in the analysis.
Fisheries Monitoring Surveys
    Ocean Wind plans to undertake various fisheries monitoring surveys 
in collaboration with several academic partners throughout the period 
of effectiveness for this rule. As described in Section 1.3.4 of the 
ITA application, Ocean Wind has developed a Fisheries Monitoring Plan 
(FMP) in consultation with BOEM's ``Guidelines for Providing 
Information on Fisheries for Renewable Energy Development on the 
Atlantic Outer Continental Shelf'' (BOEM, 2019). Ocean Wind plans to 
conduct various types of surveys, including surveys using gear similar 
to that used in commercial fisheries (e.g., trawl nets, hook and line 
gear, gillnets, pot/trap), acoustic telemetry surveys, environmental 
DNA (eDNA) sampling, clam surveys, oceanographic glider surveys, and 
pelagic fish surveys (Ocean

[[Page 64881]]

Wind, 2022b). The Plan also includes structured habitat surveys 
involving use of chevron traps and a pelagic and benthic baited remote 
underwater video (BRUV) device connected to the surface by vertical 
lines.
    Gear and activities that NMFS does not expect to have the potential 
to cause impacts to marine mammals include: use of autonomous gliders, 
clam surveys using a slow moving hydraulic dredge, non-extractive 
surveys specifically for pelagic fish (through use of baited and towed 
camera traps and autonomous glider equipment with echosounders), and 
non-extractive eDNA collection from water samples taken while in the 
field, and acoustic telemetry surveys of pelagic fish. These 
activities, or use of these gear types, are unlikely to have any 
potential to impact marine mammals as the gear types do not involve use 
of components that marine mammals are likely to interact with (e.g., 
become entangled in, be hooked by) or the surveys involve passive 
interaction with the environment.
    Planned fishery survey activities including use of gear that could 
have potential to result in marine mammal interaction (e.g., trawl 
surveys, hook and line activities, gillnet use, pot/trap deployment, 
and chevron trap and BRUV use) are required to implement Best 
Management Practices (BMPs) that would minimize this risk to the point 
that take is not reasonably anticipated to occur. Because of the BMPs 
stated in the Proposed Mitigation section, neither NMFS nor Ocean Wind 
anticipates any incidental take of marine mammals to occur from the 
fisheries-specific activities described herein and in the ITA 
application (Ocean Wind, 2022b). Accordingly, Ocean Wind has not 
requested any take of marine mammals incidental to these fisheries 
surveys, nor does NMFS propose to authorize any given the nature of the 
activities and, for certain gear types, the mitigation measures planned 
for use by Ocean Wind. Therefore, fishery monitoring survey activities 
are not analyzed further in this document.
Dredging Activities
    Dredging typically consists of the removal and sometimes 
transportation of underwater sediment to deepen a specific area. This 
is typically performed in navigational channels for vessel traffic. The 
ITA application notes that dredging may be required prior to cable 
laying in the event sandwaves are present and that dredging may need to 
occur across the lifetime of the project (Ocean Wind, 2022b).
    NMFS does not expect dredging to generate noise levels that would 
cause take of marine mammals. Most of the energy falls below 1 kHz, 
which indicates that it is highly unlikely to cause damage to marine 
mammal hearing (Todd et al., 2015). For example, a study by Reine and 
Clarke (2014) found that, using a propagation loss coefficient of 
15LogR, source levels of dredging operations in the shallow waters 
(less than 15 m depth) in New York Harbor were measured at and did not 
exceed 151 dB re 1 mPa, which is not expected to cause hearing shifts 
in marine mammals. A more recent analysis by McQueen et al. (2020) 
found that, using a maximum sound level of 192 dB re 1 mPa, the 
resulting isopleths for representative marine mammals (i.e., the harbor 
seal and the harbor porpoise), the resulting isopleths for temporary 
shifts in hearing would occur less than 20 m and less than 74 m, 
respectively. Isopleths for permanent shifts were noted as less than 1 
m for both marine mammal species.
    In Section 3.15 (Marine Mammals) of the Ocean Wind 1 draft EIS 
(https://www.boem.gov/renewable-energy/state-activities/ocean-wind-1), 
BOEM states that ``Based on the available source level information 
presented in Section 3.15.5, dredging by mechanical or hydraulic 
dredges is unlikely to exceed marine mammal permanent threshold shifts 
(PTS; injury) thresholds, but if dredging occurs in one area for 
relatively long periods temporary threshold shifts (TTS) and behavioral 
thresholds could be exceed as well as masking of marine mammal 
communications (Todd et al., 2015; NMFS, 2018).'' While NMFS 
acknowledges the potential of short-duration masking or slight 
behavioral changes (Todd et al., 2015) to occur during dredging 
activities, any effects on marine mammals are expected to be short-
term, low intensity, and unlikely to qualify as take. Given the size of 
the area that dredging operations would be occurring in, as well as the 
coastal nature of some of these activities for the nearshore sea-to-
shore connection points related to temporary cofferdam installation/
removal, NMFS expects that any marine mammals would not be exposed at 
levels or durations likely to disrupt normal life activities (i.e., 
migrating, foraging, calving, etc.). Therefore, the potential for take 
of marine mammals to result from these activities is so low as to be 
discountable and Ocean Wind did not request, and NMFS does not propose 
to authorize, any takes associated with dredging and dredging 
activities are not analyzed further in this document.
Cable Laying and Installation
    Cable burial operations will occur both in Ocean Wind 1 Wind Farm 
Area for the inter-array cables connecting the WTGs to the OSS and in 
the Ocean Wind 1 export cable route for the cables carrying power from 
the OSS to land. Inter-array cables will connect the 98 WTGs to the 
OSS. A single offshore export cable will connect the OSSs to the New 
Jersey sea-to-shore transition point. The offshore export and inter-
array cables will be buried in the seabed at a target depth of 1.2 to 
2.8 m (4 to 6 ft). All cable burial operations will follow installation 
of the monopile foundations, as the foundations must be in place to 
provide connection points for the export cable and inter-array cables.
    All cables will be buried below the seabed, when possible, and 
buried onshore up to the transition joint bays. The targeted burial 
depths will be determined later by Ocean Wind, following a detailed 
design and Cable Burial Risk Assessment. This Assessment will note 
where burial cannot occur, where sufficient depths cannot be achieved, 
and/or where additional protection is required due to the export cable 
crossing other cables or pipelines (either related to the Ocean Wind 1 
project or not). Burial of cables will be performed by specific 
vessels, which are described in Tables 6.1.2-5, 6.1.2-6, 6.1.2-7, 
6.1.2-8, and 6.1.2-9 in the Ocean Wind 1 COP (https://www.boem.gov/ocean-wind-1-construction-and-operations-plan).
    Cable laying, cable installation, and cable burial activities 
planned to occur during the construction of Ocean Wind 1 may include 
the following:
     Jetting;
     Vertical injection;
     Leveling;
     Mechanical cutting;
     Plowing (with or without jet-assistance);
     Pre-trenching; and,
     Controlled flow excavation.
    Ocean Wind notes that installation days are not continuous and do 
not include equipment preparation or downtime that may result from 
weather or maintenance.
    Some dredging may be required prior to cable laying due to the 
presence of sandwaves. Sandwave clearance may be undertaken where cable 
exposure is predicted over the lifetime of the Project due to seabed 
mobility. Alternatively, sandwave clearance may be undertaken where 
slopes become greater than approximately 10 degrees (17.6 percent), 
which could cause instability to the burial tool. The work could be

[[Page 64882]]

undertaken by traditional dredging methods such as a trailing suction 
hopper. Alternatively, controlled flow excavation or a sandwave removal 
plough could be used. In some cases, multiple passes may be required. 
The method of sandwave clearance Ocean Wind chooses will be based on 
the results from the site investigation surveys and cable design. More 
information on cable laying associated with the proposed project is 
provided in Ocean Wind's COP (Ocean Wind, 2022a) and NMFS further 
references the reader to the Ocean Wind 1 COP found on BOEM's website 
(https://www.boem.gov/ocean-wind-1-construction-and-operations-plan). 
As the noise levels generated from this activity are low, the potential 
for take of marine mammals to result is discountable (86 FR 8490, 
February 5, 2021) and Ocean Wind does not request marine mammal take 
associated with cable laying. Therefore, cable laying activities are 
not analyzed further in this document.
Offshore Wind Farm Operational Noise
    Although this proposed rulemaking primarily covers the noise 
produced from construction activities relevant to the Ocean Wind 1 
offshore wind facility, operational noise was a consideration in NMFS' 
analysis of the project, as all 98 turbines would become operational 
within the effective dates of the rule, beginning no sooner than 2024. 
It is expected that a minimum of 68 turbines would be operational in 
2024 with the rest installed and operational in either late 2024 or 
2025. Once operational, offshore wind turbines are known to produce 
continuous, non-impulsive underwater noise, primarily in the lower-
frequency bands (below 8 kHz).
    In both newer, quieter, direct-drive systems (such as what has been 
proposed for Ocean Wind 1) and older generation, geared turbine 
designs, recent scientific studies indicate that operational noise from 
turbines is on the order of 110 to 125 dB re 1 mPa, root-mean-square 
sound pressure level (SPLrms) at an approximate distance of 
50 m (Tougaard et al., 2020). Tougaard et al. (2020) further noted that 
sound levels could reach as high as 128 dB re 1 mPa, SPLrms 
in the 10 Hz to 8 kHz range. However, BOEM notes that the Tougaard et 
al. (2020) study assumed that the largest monopile-specific WTG was 3.6 
MW, which is much smaller than those being considered for the Ocean 
Wind 1 project (Ocean Wind 1 DEIS, Section 3.13 Finfish, Invertebrates, 
and Essential Fish Habitat; BOEM, 2022). Tougaard further stated that 
the operational noise produced from WTGs is static in nature and is 
lower than noise produced from passing ships. This is a level that 
marine mammals in this region are likely already habituated to. 
Furthermore, operational noise levels are likely lower than those 
ambient levels already present in active shipping lanes, meaning that 
any operational noise levels would likely only be detected at a very 
close proximity to the WTG (Thomsen et al., 2006; Tougaard et al., 
2020). Furthermore, the noise from operational wind turbines has been 
previously found to be much lower in intensity than the noises present 
during construction, although this was based on a single turbine with a 
maximum power of 2 MW (Madsen et al., 2006). Other studies by Jansen 
and de Jong (2016) and Tougaard et al. (2009b) determined that while 
marine mammals would be able to detect operational noise from offshore 
wind farms (older 2 MW models) for several thousand kilometers, the 
effects produced from this should have no significant impacts on the 
individual survival, population viability, marine mammal distribution, 
or the behavior of the animals. However, these studies are, again, 
based on older models and not newer generation turbines with more 
modernized and quieter technology.
    More recently, a study by St[ouml]ber and Thomsen (2021) was 
published where the authors were looking to estimate the operational 
noise from the larger, more recent generation of direct-drive WTGs. 
Their findings demonstrated that more modern turbine designs could 
generate higher operational noise levels (170 to 177 dB re 1 mPa 
SPLrms for a 10 MW WTG) than those previously reported for 
older models. These results are similar to the results presented by 
Tougaard et al. (2020). However, the results of this study haven't been 
validated yet as they were based on a small sample size (Ocean Wind 1 
DEIS, section 3.15 Marine Mammals; BOEM, 2022).
    Specifically related to the proposed Ocean Wind 1 project, BOEM 
included operational noise throughout the DEIS. As described in Ocean 
Wind 1's DEIS (in COP Volume II, Appendix R-2; BOEM, 2022), BOEM states 
that the operational noises would primarily consist of low-frequency 
sounds (60 to 300 Hz) and consist of relatively low SPLs. It further 
concludes that, ``It is unlikely that WTG operations will cause injury 
or behavioral responses to marine fauna [including marine mammals], so 
the risk of impact is expected to be low.'' While exceptions have been 
previously noted in the scientific literature where some lower-
frequency sounds produced by some marine mammal species (i.e., 
odontocete burst-pulsed sounds (Richardson et al., 1995) and bottlenose 
dolphin bray-calls (Janik, 2000)), may fall within similar ranges of 
operational wind turbine noise, these assumptions were previously 
attributed based upon the older generation turbines not using the more 
recent and modern drive shafts. Furthermore, based on the modern type 
of turbine planned for use in Ocean Wind 1, BOEM has preliminarily 
determined that no physiological effects on fish would result from WTG 
operation, which would indicate that no marine mammal prey impacts are 
likely to occur (Ocean Wind 1 DEIS, Section 3.13 Finfish, 
Invertebrates, and Essential Fish Habitat; BOEM, 2022). Furthermore, as 
many offshore permanent structures, including offshore wind farms, are 
known to attract fish species and other invertebrates after 
construction in an artificial reef effect (Wilson and Elliott, 2009; 
Lindeboom et al., 2011; Langhamer, 2012; Glarou et al., 2020), BOEM and 
Ocean Wind consider adverse impacts to marine mammal prey are unlikely. 
Neither BOEM nor Ocean Wind currently expect take of marine mammals to 
result from WTG operation, and Ocean Wind did not request take 
authorization from this activity. NMFS acknowledges that more research 
on the impacts of operational noise on marine mammals and their prey is 
needed, as currently available information on modern turbine models is 
limited. However, based on the information above, including the small 
numbers of turbines and short duration of operation that would be 
covered under this rule, NMFS is preliminarily not proposing to 
authorize take of marine mammals from operational noise from WTGs and 
it is not discussed or analyzed further in this proposed Federal 
Register notice.
    In consideration of all activities in which the proposed harassment 
and subsequent take of marine mammals is considered a possibility, NMFS 
further addresses conservative approaches for the proposed mitigation, 
monitoring, and reporting measures, which are described in detail later 
in this document (see Proposed Mitigation and Proposed Monitoring and 
Reporting sections).

Description of Marine Mammals in the Area of Specified Activities

    Several marine mammal species occur within the project area. 
Sections 3 and 4 of Ocean Wind's ITA application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the potentially

[[Page 64883]]

affected species (Ocean Wind, 2022b). Additional information regarding 
population trends and threats may be found in NMFS' Stock Assessment 
Reports (SARs; https://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 (https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS' 
SARs). While no mortality is anticipated or authorized here, PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' 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 and Gulf of Mexico SARs. All values presented in 
Table 3 are the most recent available data at the time of publication 
which can be found in NMFS' SARs (Hayes et al., 2022), available online 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.
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    All 38 species that could potentially occur in the proposed survey 
areas are included in Table 3-1 of the Ocean Wind 1 ITA application and 
discussed therein (Ocean Wind, 2022b). While the majority of these 
species have been documented or sighted off the New Jersey coast in the 
past, for the species and stocks not listed in Table 3, NMFS considers 
it unlikely that their occurrence would overlap the activity in a 
manner that would result in harassment, either because of their spatial 
occurrence (i.e., more northern or southern ranges) and/or with the 
geomorphological characteristics of the underwater environment (i.e., 
water

[[Page 64887]]

depth in the development area). Because of this, these species are not 
discussed further.
    In addition, the Florida manatees (Trichechus manatus; a sub-
species of the West Indian manatee) has been previously documented as 
an occasional visitor to the Northeast region during summer months 
(U.S. Fish and Wildlife Service (USFWS), 2019). However, manatees are 
managed by the USFWS and are not considered further in this document.
    As indicated above, all 17 species (with 18 managed stocks) in 
Table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. Five of the marine 
mammal species for which take is requested have been designated as ESA-
listed, including North Atlantic right, blue, fin, sei, and sperm 
whales. In addition to what is included in Sections 3 and 4 of Ocean 
Wind's ITA application (https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility), the SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), and 
NMFS' website (https://www.fisheries.noaa.gov/species-directory/marine-mammals) provide further general information regarding life history, 
threats, and status of the impacted species and stocks. Below, we 
provide additional information, where available and applicable, to 
inform our impact analyses including designated Unusual Mortality 
Events, or ESA Critical Habitat, or information regarding other known 
areas of known biological importance.
    Two specific areas have been designated as Critical Habitat for 
North Atlantic right whales. The calving ground is located in the 
southern Atlantic coast and extends from Georgia to Florida. The 
foraging ground extends from Maine to Massachusetts and includes the 
Gulf of Maine and Georges Bank region. With regards to Ocean Wind 1, 
both of these specific Critical Habitat locations are found several 
hundreds of miles from the project area and should not be impacted by 
this proposed project. Furthermore, no Critical Habitat for other 
species is close enough to be impacted by Ocean Wind's activities.
    Under the MMPA, an unusual mortality event (UME) is defined as ``a 
stranding that is unexpected; involves a significant die-off of any 
marine mammal population; and demands immediate response'' (16 U.S.C. 
1421h(6)). As of September 2022, seven UMEs are considered active, with 
five of these occurring along the Atlantic coast for several marine 
mammal species. Currently the most relevant to this proposed action are 
the UMEs related to the minke whale, the North Atlantic right whale, 
and the humpback whale. The Florida manatee UME is not discussed 
further as manatees are not one of NMFS' trust species. This species is 
managed by the USFWS and more information can be found on their website 
(https://myfwc.com/research/manatee/rescue-mortality-response/ume/). 
The recent 2022 Northeast Pinniped UME is not discussed further as 
impacts of this UME have only been recorded along the southern and 
central coast of Maine (https://www.fisheries.noaa.gov/2022-pinniped-unusual-mortality-event-along-maine-coast). Given that these areas are 
found several hundreds of miles away from the Ocean Wind 1 project 
area, and are only presently known to these areas off of Maine, the 
pinniped UME is not discussed further in this proposed notice. More 
information on UMEs, including all active, closed, or pending, can be 
found on NMFS' website at https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
    Below, we include additional information for the subset of species 
that presently have an active or recently closed UME occurring along 
the Atlantic coast, or for which there is information available related 
to areas of specific biological significance. For the majority of 
species potentially present in the specific geographic region, NMFS has 
designated only a single generic stock (e.g., ``western North 
Atlantic'') for management purposes. This includes the ``Canadian east 
coast'' stock of minke whales, which includes all minke whales found in 
U.S. waters and is also a generic stock for management purposes. For 
humpback and sei whales, NMFS defines stocks on the basis of feeding 
locations, i.e., Gulf of Maine and Nova Scotia, respectively. However, 
references to humpback whales and sei whales in this document refer to 
any individuals of the species that are found in the specific 
geographic region. Any areas of known biological importance (including 
the Biologically Important Areas (BIAs) identified in Van Parijs et 
al., 2015) that overlap spatially with the project area are addressed 
in the species sections below.
North Atlantic Right Whale
    The North Atlantic right whale is considered one of the most 
critically endangered populations of large whales in the world and has 
been listed as a federally endangered species since 1970. The Western 
Atlantic stock is considered depleted under the MMPA (Hayes et al., 
2022). North Atlantic right whales are currently threatened by low 
population abundance, higher than normal mortality rates and lower than 
normal reproductive rates. In 2021, Pace et al. released an update of a 
North Atlantic right whale 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 12 years (2010-2022), the average number of calves 
born into the population is approximately 13 (as of September 14, 
2022).
    However, the most recent information on the status of North 
Atlantic right whales can be found in NMFS' 2022 SAR (Hayes et al., 
2022). Although NMFS relies on the most up-to-date SARs, we also 
acknowledge that the population estimate has been updated to below 350 
animals, as reflected on our website (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). We noted that this change in 
abundance estimate would not change the estimated take or the take NMFS 
has proposed for authorization of North Atlantic right whales. As a 
result, this information does not change our ability to make the 
preliminary required findings under the MMPA for Ocean Wind's proposed 
construction activities.
    The North Atlantic right whale calving season begins around mid-
November and ends after mid-April. Female North Atlantic right whales 
give birth to a single calf after a gestation period of 12 months, and 
typically repeat this in 3-year intervals. However, per NMFS' website 
(https://www.fisheries.noaa.gov/national/endangered-species-conservation/north-atlantic-right-whale-calving-season-2022) and likely 
due to stress (e.g., entanglements in fishing gear and vessel 
collisions), North Atlantic right whale mothers have begun having 
calves every 7 to 10 years, on average (van der Hoop et al., 2017; 
Pettis et al., 2022) with mean annual calving intervals increasing 
significantly over the last

[[Page 64888]]

three decades (Kraus et al., 2020). Further compounding this issue is 
that not all calves born into the population survive to adulthood or to 
a viable age for reproduction. For example, 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. More recently, a dead North Atlantic 
right whale calf was reported stranded on February 13, 2021, along the 
Florida coast. These impacts all further challenge any potential of 
recovery for the North Atlantic right whale. As previously stated by 
Greene and Pershing (2004) and Meyer-Gutbrod et al. (2021), the effects 
on changes in calving rates and further effects from climate 
variability, may continue to make this a vulnerable species and hinder 
recovery if present trends continue.
    As described above, the project area is present in part of an 
important migratory corridor for North Atlantic right whales, which 
make annual migrations up and down the Atlantic coast. There is a 
recovery plan (NOAA Fisheries, 2017) for the North Atlantic right 
whale, and relatively recently there was a five-year review of the 
species (NOAA Fisheries, 2017). The North Atlantic right whale only had 
a 2.8 percent recovery rate between 1990 and 2011 (Hayes et al., 2022). 
NMFS' website (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale) notes fewer than 350 North Atlantic right whales are 
remaining.
    As described above, North Atlantic right whale presence in the 
project area is seasonal. As a result of several years of aerial 
surveys and PAM deployments in the area we have confidence that right 
whales are expected in the project area during certain times of year, 
while at other times of year right whales are not expected to occur in 
the project area. LeBreque et al. (2015) identify a seasonally active 
migratory corridor BIA for North Atlantic right whales that overlaps 
the project area in March-April (northbound route) and November-
December southbound. Due to the current status of North Atlantic right 
whales, and the spatial overlap of the proposed project with an area 
they are known to seasonally occur in, the potential impacts of the 
proposed project on right whales warrant particular attention.
    Elevated right whale mortalities have occurred since June 7, 2017, 
along the U.S. and Canadian coast, with the leading category for the 
cause of death for this UME determined to be ``human interaction,'' 
specifically from entanglements or vessel strikes. As of early October 
2022, there have been 34 confirmed mortalities (dead stranded or 
floaters; 21 in Canada; 13 in the United States) and 21 seriously 
injured free-swimming whales for a total of 55 whales. As of October 
14, 2022, the UME also considers animals with sublethal injury or 
illness bringing the total number of whales in the UME to 91. 
Approximately 42 percent of the population is known to be in reduced 
health (Hamilton et al., 2021), likely contributing to the smaller body 
sizes at maturation (Stewart et al., 2022) and making them more 
susceptible to threats. More information about the North Atlantic right 
whale UME is available online at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
    NMFS' regulations at 50 CFR 224.105 designated nearshore waters of 
the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management Areas 
(SMAs) for North Atlantic right whales in 2008 (73 FR 60173, October 
10, 2008). SMAs were developed to reduce the threat of collisions 
between ships and North Atlantic right whales around their migratory 
route and calving grounds. While the project area does not overlap with 
any SMAs, transiting vessels in the Mid-Atlantic Migratory region, 
specifically out of Delaware Bay (38[deg]52'27.4'' N-075[deg]01'32.1'' 
W; active between November 1 and April 30) or the New York/New Jersey 
ports (40[deg]29'42.2'' N-073[deg]55'57.6'' W; active between November 
1 and April 30), could travel through these SMAs. NMFS notes that 
Dynamic Management Areas (DMAs), triggered based on visual sightings 
documented during the presence of three or more right whales within a 
specific area, may be established at any time. More information on SMAs 
and DMAs can be found on NMFS' website at https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales.
    There are no areas where North Atlantic right whales are 
specifically known to aggregate for foraging activities that overlap 
the project area.
Humpback Whale
    On September 8, 2016, NMFS divided the once single humpback whale 
species into 14 distinct population segments (DPS) \1\ removed the 
species-level listing, and in its place listed four DPSs as endangered 
and one DPS as threatened (81 FR 62260, September 8, 2016). The 
remaining nine DPSs were not listed. The West Indies DPS, which is not 
listed under the ESA, is the only DPS of humpback whales that are 
expected to occur in the Survey Area. Bettridge et al. (2015) estimated 
the size of this population at 12,312 (95 percent Confidence Interval 
(CI) 8,688-15,954) whales in 2004-05, which is consistent with previous 
population estimates of approximately 10,000-11,000 whales (Smith et 
al., 1999; Stevick et al., 2003) and the increasing trend for the West 
Indies DPS (Bettridge et al., 2015). Whales occurring in the project 
area are considered to be from the West Indies DPS but are not 
necessarily from the Gulf of Maine feeding population managed as a 
stock by NMFS. Given the current data, we expect humpback whales 
migrating or foraging off the United States East Coast in the North 
Atlantic Ocean are non-ESA-listed animals (West Indies DPS) that 
originate from the western North Atlantic Ocean feeding areas (i.e., 
Gulf of Maine, Gulf of Saint Lawrence, Newfoundland/Labrador, Western 
Greenland, Iceland, Norwegian Sea, and Northern Norway). Barco et al., 
2002 estimated that, based on photo-identification, only 39 percent of 
individual humpback whales observed along the mid- and south Atlantic 
U.S. coast are from the Gulf of Maine stock. Bettridge et al. (2015) 
estimated the size of the West Indies DPS is 12,312 (95 percent CI 
8,688-15,954) whales in 2004-05, which is consistent with previous 
population estimates of approximately 10,000-11,000 whales (Stevick et 
al., 2003; Smith et al., 1999) and the increasing trend for the West 
Indies DPS (Bettridge et al., 2015). Humpback whales utilize the mid-
Atlantic as a migration pathway between calving/mating grounds to the 
south and feeding grounds in the north (Waring et al., 2007a; Waring et 
al., 2007b).
---------------------------------------------------------------------------

    \1\ Under the Endangered Species Act, in 16 U.S.C. 1532(16), a 
distinct population segment (or DPS) is a vertebrate population or 
group of populations that is discrete from other populations of the 
species and significant in relation to the entire species. NOAA 
Fisheries and the US Fish and Wildlife Service released a joint 
statement on February 7, 1996 (61 FR 4722) that defines the criteria 
for identifying a population as a DPS.
---------------------------------------------------------------------------

    Sighting of humpback whales used to be uncommon off of New Jersey; 
however, four decades ago, humpback whales were infrequently sighted 
off the US mid-Atlantic states (USMA, New York, New Jersey, Delaware, 
Maryland, Virginia and North Carolina; CeTAP, 1982), but they are now 
common to coastal Virginia in winter when most humpback whales are on 
their breeding

[[Page 64889]]

grounds (Swingle et al., 1993, Barco et al., 2002, Aschettino et al., 
2022). This shift is also supported by passive acoustic monitoring data 
(e.g., Davis et al., 2020). Recently, Brown et al. (2022) investigated 
site fidelity, population composition and demographics of individual 
whales in the New York Bight apex (which includes New Jersey waters and 
found that although mean occurrence was low (2.5 days), mean occupancy 
was 37.6 days, and 31.3 percent of whales returned from one year to the 
next. The majority of whales were seen during summer (July-September, 
62.5 percent), followed by autumn (October-December, 23.5 percent) and 
spring (April-June, 13.9 percent). They also found sightings of mother-
calf pairs were rare. When data were available to evaluate age, most 
individuals were either confirmed or suspected juveniles, including 
four whales known to be 2-4 years old based on known birth year, and 13 
whales with sighting histories of 2 years or less on primary feeding 
grounds. Three individuals were considered adults based on North 
Atlantic sighting records. The young age structure in the nearshore 
waters of the New York Bight apex is consistent with other literature 
(Stepanuk et al., 2021; Swingle et al., 1993; Barco et al., 2022). It 
remains to be determined whether humpback whales in the New York Bight 
apex represent a northern expansion of individuals that had wintered 
off Virginia, a southern expansion of individuals from the adjacent 
Gulf of Maine, or is the result of another phenomenon.
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. Partial or 
full necropsy examinations have been conducted on approximately half of 
the 161 known cases (as of October 2022). Of the whales examined, about 
50 percent had evidence of human interaction, either ship strike or 
entanglement. While a portion of the whales have shown evidence of pre-
mortem vessel strike, this finding is not consistent across all whales 
examined and more research is needed. NOAA is consulting with 
researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
regarding this declared UME is available at: www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    A humpback whale feeding BIA extends throughout the Gulf of Maine, 
Stellwagen Bank, and Great South Channel from May through December, 
annually (LeBrecque et al., 2015). However, this BIA is located further 
north and does not overlap with any part of the project area.
Minke Whale
    Since January 2017, a UME has been declared based on elevated minke 
whale mortalities that have occurred along the Atlantic coast from 
Maine through South Carolina, with a total of 123 strandings (as of 
October 2022). Full or partial necropsy examinations were conducted on 
more than 60 percent of the whales. Preliminary necropsy findings show 
evidence of human interactions or infectious disease, but these 
findings are not consistent across all of the whales examined, so more 
research is needed. More information is available at: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.
    There are two minke whale feeding BIAs identified in the southern 
and southwestern section of the Gulf of Maine, including Georges Bank, 
the Great South Channel, Cape Cod Bay and Massachusetts Bay, Stellwagen 
Bank, Cape Anne, and Jeffreys Ledge from March through November, 
annually (LeBrecque et al., 2015). However, these BIAs are located 
further north and do not overlap with any part of the project area.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 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 4.
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    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Seventeen marine mammal species (15 cetacean species (6 mysticetes and 
9 odontocetes) and 2 pinniped species (both phocid)) have the 
reasonable potential to co-occur with the proposed survey activities. 
Please refer back to Table 3. NMFS notes that in 2019, Southall et al. 
recommended new names for hearing groups that are widely recognized. 
However, this new hearing group classification does not change the 
weighting functions or acoustic thresholds (i.e., the weighting 
functions and thresholds in Southall et al. (2019) are identical to 
NMFS 2018 Revised Technical Guidance). When NMFS updates our Technical 
Guidance, we will be adopting the updated Southall et al. (2019) 
hearing group classification.

Potential Effects to Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks. General background information on marine mammal hearing was 
provided previously (see the Description of Marine Mammals in the Area 
of Specified Activities section). Here, the potential effects of sound 
on marine mammals are discussed.
    Ocean Wind has requested authorization for the take of marine 
mammals that may occur incidental to construction activities in the 
Ocean Wind 1 project area. Ocean Wind 1 analyzed potential impacts to 
marine mammals from acoustic and explosive sources in its ITA 
application. NMFS carefully reviewed the information provided by Ocean 
Wind, along with independently reviewing applicable scientific research 
and literature and

[[Page 64891]]

other information to evaluate the potential effects of Ocean Wind's 
activities on marine mammals, which are presented in this section.
    The proposed activities would result in the placement of up to 101 
permanent structures (i.e., the monopiles and associated scour 
protection supporting the WTGs and OSS, depending on the foundation 
scenario carried forward for the OSSs) and seven temporary cofferdams 
in the marine environment. Up to ten UXO/MEC detonations may occur 
intermittently, and only as necessary. A variety of effects on marine 
mammals, habitat, and prey species could occur.

Description of Sound Sources

    This section contains a brief technical background on sound, on the 
characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to a discussion of the potential effects of the specified 
activity on marine mammals found later in this document. For general 
information on sound and its interaction with the marine environment, 
please see, e.g., Au and Hastings (2008); Richardson et al. (1995); 
Urick (1983).
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in Hz or cycles per second. Wavelength is the distance 
between two peaks or corresponding points of a sound wave (length of 
one cycle). Higher frequency sounds have shorter wavelengths than lower 
frequency sounds, and typically attenuate (decrease) more rapidly, 
except in certain cases in shallower water. Amplitude is the height of 
the sound pressure wave or the ``loudness'' of a sound and is typically 
described using the relative unit of the dB. A sound pressure level 
(SPL) in dB is described as the ratio between a measured pressure and a 
reference pressure (for underwater sound, this is 1 microPascal (mPa)), 
and is a logarithmic unit that accounts for large variations in 
amplitude; therefore, a relatively small change in dB corresponds to 
large changes in sound pressure. The source level (SL) represents the 
SPL referenced at a distance of 1 m from the source (referenced to 1 
mPa), while the received level is the SPL at the listener's position 
(referenced to 1 mPa).
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.
    Sound exposure level (SEL; represented as dB re 1 micropascal-
squared second (mPa2-s)) represents the total energy in a stated 
frequency band over a stated time interval or event, and considers both 
intensity and duration of exposure. The per-pulse SEL is calculated 
over the time window containing the entire pulse (i.e., 100 percent of 
the acoustic energy). SEL is a cumulative metric; it can be accumulated 
over a single pulse, or calculated over periods containing multiple 
pulses. Cumulative SEL represents the total energy accumulated by a 
receiver over a defined time window or during an event. Peak sound 
pressure (also referred to as zero-to-peak sound pressure or 0-pk) is 
the maximum instantaneous sound pressure measurable in the water at a 
specified distance from the source, and is represented in the same 
units as the rms sound pressure.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner similar to ripples on the surface of a pond and may be either 
directed in a beam or beams or may radiate in all directions 
(omnidirectional sources), as is the case for sound produced by the 
pile driving activity considered here. The compressions and 
decompressions associated with sound waves are detected as changes in 
pressure by aquatic life and man-made sound receptors such as 
hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (ICES, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels, as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 2 kHz 
and, if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but also on the ability of 
sound to propagate through the environment. In turn, sound propagation 
is dependent on the spatially and temporally varying properties of the 
water column and sea floor, and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a given frequency and location can 
vary by 10-20 dB from day to day (Richardson et al., 1995). The result 
is that, depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals. Underwater ambient sound in the Atlantic Ocean southeast of 
Rhode Island is composed of sounds produced by a number of natural and 
anthropogenic sources. Human-generated sound is a significant 
contributor to the ambient acoustic environment in the project 
location.

[[Page 64892]]

Details of source types are described in the following text.
    Sounds are often considered to fall into one of two general types: 
Impulsive and non-impulsive (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing. Please see Southall et al. (2019) and NMFS (2018) for an in-
depth discussion of these concepts. The distinction between these two 
sound types is not always obvious, as certain signals share properties 
of both impulsive and non-impulsive sounds. A signal near a source 
could be categorized as impulsive, but due to propagation effects as it 
moves farther from the source, the signal duration becomes longer 
(e.g., Greene and Richardson, 1988).
    Impulsive sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur 
either as isolated events or repeated in some succession. Impulsive 
sounds are all characterized by a relatively rapid rise from ambient 
pressure to a maximal pressure value followed by a rapid decay period 
that may include a period of diminishing, oscillating maximal and 
minimal pressures, and generally have an increased capacity to induce 
physical injury as compared with sounds that lack these features. Non-
impulsive sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-impulsive sounds can be transient 
signals of short duration but without the essential properties of 
pulses (e.g., rapid rise time). Examples of non-impulsive sounds 
include those produced by vessels, aircraft, machinery operations such 
as drilling or dredging, vibratory pile driving, and active sonar 
systems. The duration of such sounds can be greatly extended in a 
highly reverberant environment.

Potential Effects of Underwater Sound on Marine Mammals

    Anthropogenic sounds cover a broad range of frequencies and sound 
levels and can have a range of highly variable impacts on marine life, 
from none or minor to potentially severe responses, depending on 
received levels, duration of exposure, behavioral context, and various 
other factors. Broadly, underwater sound from active acoustic sources 
can potentially result in one or more of the following: Temporary or 
permanent hearing impairment, non-auditory physical or physiological 
effects, behavioral disturbance, stress, and masking (Richardson et 
al., 1995; Gordon et al., 2003; Nowacek et al., 2007; Southall et al., 
2007; G[ouml]tz et al., 2009). The degree of effect is intrinsically 
related to the signal characteristics, received level, distance from 
the source, and duration of the sound exposure in addition to the 
contextual factors of the receiver (e.g., behavioral state at time of 
exposure, age class, etc.) (Southall et al., 2017; Southall et al., 
2019). In general, sudden, high level sounds can cause hearing loss, as 
can longer exposures to lower level sounds. Temporary or permanent loss 
of hearing will occur almost exclusively for noise within an animal's 
hearing range. We describe below the specific manifestations of 
acoustic effects that may occur based on the activities proposed by 
Ocean Wind.
    Richardson et al. (1995) described zones of increasing intensity of 
effect that might be expected to occur, in relation to distance from a 
source and assuming that the signal is within an animal's hearing 
range. First (at the greatest distance) is the area within which the 
acoustic signal would be audible (potentially perceived) to the animal 
but not strong enough to elicit any overt behavioral or physiological 
response. The next zone (closer to the receiving animal) corresponds 
with the area where the signal is audible to the animal and of 
sufficient intensity to elicit behavioral or physiological 
responsiveness. The third is a smaller zone around the receiving 
animals within which, for signals of high intensity, the received level 
is sufficient to potentially cause discomfort or tissue damage to 
auditory or other systems. Overlaying these zones to a certain extent 
is the area within which masking (i.e., when a sound interferes with or 
masks the ability of an animal to detect a signal of interest that is 
above the absolute hearing threshold) may occur; the masking zone may 
be highly variable in size.
    Potential effects from explosive sound sources can range in 
severity from effects such as behavioral disturbance or tactile 
perception to physical discomfort, slight injury of the internal organs 
and the auditory system, or mortality (Yelverton et al., 1973). Non-
auditory physiological effects or injuries that theoretically might 
occur in marine mammals exposed to high level underwater sound or as a 
secondary effect of extreme behavioral reactions (e.g., change in dive 
profile as a result of an avoidance reaction) caused by exposure to 
sound include neurological effects, bubble formation, resonance 
effects, and other types of organ or tissue damage (Cox et al., 2006; 
Southall et al., 2007; Zimmer and Tyack, 2007; Tal et al., 2015).
    Below, we provide additional detail regarding potential impacts on 
marine mammals and their habitat from noise in general, as well as from 
the specific activities Ocean Wind plans to conduct, to the degree it 
is available (noting that there is limited information regarding the 
impacts of offshore wind construction on cetaceans).
Threshold Shift
    Marine mammals exposed to high-intensity sound, or to lower-
intensity sound for prolonged periods, can experience hearing threshold 
shift (TS), which NMFS defines as a change, usually an increase, in the 
threshold of audibility at a specified frequency or portion of an 
individual's hearing range above a previously established reference 
level, expressed in decibels (NMFS, 2018). Threshold shifts can be 
permanent, in which case there is an irreversible increase in the 
threshold of audibility at a specified frequency or portion of an 
individual's hearing range, or temporary, in which there is reversible 
increase in the threshold of audibility at a specified frequency or 
portion of an individual's hearing range and the animal's hearing 
threshold would fully recover over time (Southall et al., 2019). 
Repeated sound exposure that leads to TTS could cause PTS.
    When PTS occurs, there can be physical damage to the sound 
receptors in the ear (i.e., tissue damage), whereas TTS represents 
primarily tissue fatigue and is reversible (Henderson et al., 2008). In 
addition, other investigators have suggested that TTS is within the 
normal bounds of physiological variability and tolerance and does not 
represent physical injury (e.g., Ward, 1997; Southall et al., 2019). 
Therefore, NMFS does not consider TTS to constitute auditory injury.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals, and there is no PTS data for cetaceans, but such 
relationships are assumed to be similar to those in humans and other 
terrestrial mammals. PTS typically occurs at exposure levels at least 
several decibels above (a 40 dB threshold shift approximates a PTS 
onset; e.g., Kryter et al., 1966; Miller, 1974; Henderson et al., 
2008). This can also induce mild TTS (a 6 dB threshold shift 
approximates a TTS onset; e.g., Southall et al., 2019). Based on data 
from terrestrial mammals, a precautionary assumption is that the

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PTS thresholds, expressed in the unweighted peak sound pressure level 
metric (PK), for impulsive sounds (such as impact pile driving pulses) 
are at least 6 dB higher than the TTS thresholds and the weighted PTS 
cumulative sound exposure level thresholds are 15 (impulsive sound) to 
20 (non-impulsive sounds) dB higher than TTS cumulative sound exposure 
level thresholds (Southall et al., 20019). Given the higher level of 
sound or longer exposure duration necessary to cause PTS as compared 
with TTS, PTS is less likely to occur as a result of these activities, 
but it is possible and a small amount has been proposed for 
authorization for several species.
    TTS is the mildest form of hearing impairment that can occur during 
exposure to sound, with a TTS of 6 dB considered the minimum threshold 
shift clearly larger than any day-to-day or session-to-session 
variation in a subject's normal hearing ability (Schlundt et al., 2000; 
Finneran et al., 2000; Finneran et al., 2002).
    While experiencing TTS, the hearing threshold rises, and a sound 
must be at a higher level in order to be heard. In terrestrial and 
marine mammals, TTS can last from minutes or hours to days (in cases of 
strong TTS). In many cases, hearing sensitivity recovers rapidly after 
exposure to the sound ends. There are data on sound levels and 
durations necessary to elicit mild TTS for marine mammals but recovery 
is complicated to predict and dependent on multiple factors.
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to 
serious. For example, a marine mammal may be able to readily compensate 
for a brief, relatively small amount of TTS in a non-critical frequency 
range that occurs during a time where ambient noise is lower and there 
are not as many competing sounds present. Alternatively, a larger 
amount and longer duration of TTS sustained during time when 
communication is critical for successful mother/calf interactions could 
have more serious impacts.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor 
porpoise, and Yangtze finless porpoise (Neophocoena asiaeorientalis)) 
and six species of pinnipeds (northern elephant seal (Mirounga 
angustirostris), harbor seal, ring seal, spotted seal, bearded seal, 
and California sea lion (Zalophus californianus)) that were exposed to 
a limited number of sound sources (i.e., mostly tones and octave-band 
noise with limited number of exposure to impulsive sources such as 
seismic airguns or impact pile driving) in laboratory settings 
(Southall et al., 2019). There is currently no data available on noise-
induced hearing loss for mysticetes. For summaries of data on TTS or 
PTS in marine mammals or for further discussion of TTS or PTS onset 
thresholds, please see Southall et al. (2019), and NMFS (2018).
    Recent studies with captive odontocete species (bottlenose dolphin, 
harbor porpoise, beluga, and false killer whale) have observed 
increases in hearing threshold levels when individuals received a 
warning sound prior to exposure to a relatively loud sound (Nachtigall 
and Supin, 2013, 2015, Nachtigall et al., 2016a,b,c, Finneran, 2018, 
Nachtigall et al., 2018). These studies suggest that captive animals 
have a mechanism to reduce hearing sensitivity prior to impending loud 
sounds. Hearing change was observed to be frequency dependent and 
Finneran (2018) suggests hearing attenuation occurs within the cochlea 
or auditory nerve. Based on these observations on captive odontocetes, 
the authors suggest that wild animals may have a mechanism to self-
mitigate the impacts of noise exposure by dampening their hearing 
during prolonged exposures of loud sound, or if conditioned to 
anticipate intense sounds (Finneran, 2018, Nachtigall et al., 2018).
Behavioral Disturbance
    Behavioral responses to sound are highly variable and context-
specific. Many different variables can influence an animal's perception 
of and response to (nature and magnitude) an acoustic event. An 
animal's prior experience with a sound or sound source affects whether 
it is less likely (habituation) or more likely (sensitization) to 
respond to certain sounds in the future (animals can also be innately 
predisposed to respond to certain sounds in certain ways) (Southall et 
al., 2019). Related to the sound itself, the perceived nearness of the 
sound, bearing of the sound (approaching vs. retreating), the 
similarity of a sound to biologically relevant sounds in the animal's 
environment (i.e., calls of predators, prey, or conspecifics), and 
familiarity of the sound may affect the way an animal responds to the 
sound (Southall et al., 2007, DeRuiter et al., 2013). Individuals (of 
different age, gender, reproductive status, etc.) among most 
populations will have variable hearing capabilities, and differing 
behavioral sensitivities to sounds that will be affected by prior 
conditioning, experience, and current activities of those individuals. 
Often, specific acoustic features of the sound and contextual variables 
(i.e., proximity, duration, or recurrence of the sound or the current 
behavior that the marine mammal is engaged in or its prior experience), 
as well as entirely separate factors such as the physical presence of a 
nearby vessel, may be more relevant to the animal's response than the 
received level alone. For example, Goldbogen et al. (2013) demonstrated 
that individual behavioral state was critically important in 
determining response of blue whales to sonar, noting that some 
individuals engaged in deep (greater than 50 m) feeding behavior had 
greater dive responses than those in shallow feeding or non-feeding 
conditions. Some blue whales in the Goldbogen et al. (2013) study that 
were engaged in shallow feeding behavior demonstrated no clear changes 
in diving or movement even when received levels were high (~160 dB re 
1mPa) for exposures to 3-4 kHz sonar signals, while others showed a 
clear response at exposures at lower received levels of sonar and 
pseudorandom noise.
    Studies by DeRuiter et al. (2012) indicate that variability of 
responses to acoustic stimuli depends not only on the species receiving 
the sound and the sound source, but also on the social, behavioral, or 
environmental contexts of exposure. Another study by DeRuiter et al. 
(2013) examined behavioral responses of Cuvier's beaked whales to MF 
sonar and found that whales responded strongly at low received levels 
(89-127 dB re 1mPa) by ceasing normal fluking and echolocation, 
swimming rapidly away, and extending both dive duration and subsequent 
non-foraging intervals when the sound source was 3.4-9.5 km away. 
Importantly, this study also showed that whales exposed to a similar 
range of received levels (78-106 dB re 1mPa) from distant sonar 
exercises (118 km away) did not elicit such responses, suggesting that 
context may moderate reactions. Thus, it is known that distance from 
the source can have an effect on behavioral response that is 
independent of the effect of received levels (e.g., DeRuiter et al., 
2013; Dunlop et al., 2017a; Dunlop et al., 2017b; Falcone et al., 2017; 
Dunlop et al., 2018; Southall et al., 2019a).
    Ellison et al. (2012) outlined an approach to assessing the effects 
of

[[Page 64894]]

sound on marine mammals that incorporates contextual-based factors. The 
authors recommend considering not just the received level of sound, but 
also the activity the animal is engaged in at the time the sound is 
received, the nature and novelty of the sound (i.e., is this a new 
sound from the animal's perspective), and the distance between the 
sound source and the animal. They submit that this ``exposure 
context,'' as described, greatly influences the type of behavioral 
response exhibited by the animal. Forney et al. (2017) also point out 
that an apparent lack of response (e.g., no displacement or avoidance 
of a sound source) may not necessarily mean there is no cost to the 
individual or population, as some resources or habitats may be of such 
high value that animals may choose to stay, even when experiencing 
stress or hearing loss. Forney et al. (2017) recommend considering both 
the costs of remaining in an area of noise exposure such as TTS, PTS, 
or masking, which could lead to an increased risk of predation or other 
threats or a decreased capability to forage, and the costs of 
displacement, including potential increased risk of vessel strike, 
increased risks of predation or competition for resources, or decreased 
habitat suitable for foraging, resting, or socializing. This sort of 
contextual information is challenging to predict with accuracy for 
ongoing activities that occur over large spatial and temporal expanses. 
However, distance is one contextual factor for which data exist to 
quantitatively inform a take estimate, and the method for predicting 
Level B harassment in this rule does consider distance to the source. 
Other factors are often considered qualitatively in the analysis of the 
likely consequences of sound exposure, where supporting information is 
available.
    Friedlaender et al. (2016) provided the first integration of direct 
measures of prey distribution and density variables incorporated into 
across-individual analyses of behavior responses of blue whales to 
sonar, and demonstrated a five-fold increase in the ability to quantify 
variability in blue whale diving behavior. These results illustrate 
that responses evaluated without such measurements for foraging animals 
may be misleading, which again illustrates the context-dependent nature 
of the probability of response. Exposure of marine mammals to sound 
sources can result in, but is not limited to, no response or any of the 
following observable responses: Increased alertness; orientation or 
attraction to a sound source; vocal modifications; cessation of 
feeding; cessation of social interaction; alteration of movement or 
diving behavior; habitat abandonment (temporary or permanent); and, in 
severe cases, panic, flight, stampede, or stranding, potentially 
resulting in death (Southall et al., 2007). A review of marine mammal 
responses to anthropogenic sound was first conducted by Richardson 
(1995). More recent reviews (Nowacek et al., 2007; DeRuiter et al., 
2012 and 2013; Ellison et al., 2012; Gomez et al., 2016) address 
studies conducted since 1995 and focused on observations where the 
received sound level of the exposed marine mammal(s) was known or could 
be estimated. Gomez et al. (2016) conducted a review of the literature 
considering the contextual information of exposure in addition to 
received level and found that higher received levels were not always 
associated with more severe behavioral responses and vice versa. 
Southall et al. (2021) states that results demonstrate that some 
individuals of different species display clear yet varied responses, 
some of which have negative implications, while others appear to 
tolerate high levels, and that responses may not be fully predictable 
with simple acoustic exposure metrics (e.g., received sound level). 
Rather, the authors state that differences among species and 
individuals along with contextual aspects of exposure (e.g., behavioral 
state) appear to affect response probability. The following subsections 
provide examples of behavioral responses that provide an idea of the 
variability in behavioral responses that would be expected given the 
differential sensitivities of marine mammal species to sound and the 
wide range of potential acoustic sources to which a marine mammal may 
be exposed. Behavioral responses that could occur for a given sound 
exposure should be determined from the literature that is available for 
each species, or extrapolated from closely related species when no 
information exists, along with contextual factors.

Avoidance and Displacement

    Avoidance is the displacement of an individual from an area or 
migration path as a result of the presence of a sound or other 
stressors and is one of the most obvious manifestations of disturbance 
in marine mammals (Richardson et al., 1995). For example, gray whales 
or humpback whales are known to change direction--deflecting from 
customary migratory paths--in order to avoid noise from airgun surveys 
(Malme et al., 1984; Dunlop et al., 2018). Avoidance is qualitatively 
different from the flight response, but also differs in the magnitude 
of the response (i.e., directed movement, rate of travel, etc.). 
Avoidance may be short-term, with animals returning to the area once 
the noise has ceased (e.g., Bowles et al., 1994; Goold, 1996; Stone et 
al., 2000; Morton and Symonds, 2002; Gailey et al., 2007; D[auml]hne et 
al., 2013; Russel et al., 2016; Malme et al., 1984). Longer-term 
displacement is possible, however, which may lead to changes in 
abundance or distribution patterns of the affected species in the 
affected region if habituation to the presence of the sound does not 
occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann et 
al., 2006; Forney et al., 2017). Avoidance of marine mammals during the 
construction of offshore wind facilities (specifically, impact pile 
driving) has been previously noted in the literature, with some 
significant variation in the effects and with most studies focused on 
harbor porpoises as one of the most common marine mammals in European 
waters (e.g., Tougaard et al., 2009; D[auml]hne et al., 2013; Thompson 
et al., 2013; Russell et al., 2016; Brandt et al., 2018).
    Available information on impacts to marine mammals from pile 
driving associated with offshore wind is limited to information on 
harbor porpoises and seals, as the vast majority of this research has 
occurred at European offshore wind projects where large whales and 
other odontocete species are uncommon. Harbor porpoises and harbor 
seals are considered to be behaviorally sensitive species (e.g., 
Southall et al., 2007) and the effects of wind farm construction in 
Europe on these species has been well documented. These species have 
received particular attention in European waters due to their abundance 
in the North Sea (Hammond et al., 2002; Nachtsheim et al., 2021). A 
summary of the literature on documented effects of wind farm 
construction on harbor porpoise and harbor seals is described below.
    Brandt et al. (2016) summarized the effects of the construction of 
eight offshore wind projects within the German North Sea (i.e., Alpha 
Ventus, BARD Offshore I, Borkum West II, DanTysk, Global Tech I, 
Meerwind S[uuml]d/Ost, Nordsee Ost, and Riffgat) between 2009 and 2013 
on harbor porpoises, combining PAM data from 2010-2013 and aerial 
surveys from 2009-2013 with data on noise levels associated with pile 
driving. Results of the analysis revealed significant declines in 
porpoise detections during pile driving when compared to 25-48 hours 
before pile driving began, with the magnitude of

[[Page 64895]]

decline during pile driving clearly decreasing with increasing 
distances to the construction site. During the majority of projects, 
significant declines in detections (by at least 20 percent) were found 
within at least 5-10 km of the pile driving site, with declines at up 
to 20-30 km of the pile driving site documented in some cases. Similar 
results demonstrating the long-distance displacement of harbor 
porpoises (18-25 km) and harbor seals (up to 40 km) during impact pile 
driving have also been observed during the construction at multiple 
other European wind farms (Haleters et al., 2015; Lucke et al., 2012; 
D[auml]hne et al., 2013; Tougaard et al., 2009; Haelters et al., 2015; 
Bailey et al., 2010).
    While harbor porpoises and seals tend to move several kilometers 
away from wind farm construction activities, the duration of 
displacement has been documented to be relatively temporary. In two 
studies at Horns Rev II using impact pile driving, harbor porpoise 
returned within 1-2 days following cessation of pile driving (Tougaard 
et al., 2009; Brandt et al., 2011). Similar recovery periods have been 
noted for harbor seals off of England during the construction of four 
wind farms (Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 
2015; Russell et al., 2016; Brasseur et al., 2010). In some cases, an 
increase in harbor porpoise activity has been documented inside wind 
farm areas following construction (e.g., Lindeboom et al., 2011). Other 
studies have noted longer term impacts after impact pile driving. Near 
Dogger Bank in Germany, harbor porpoises continued to avoid the area 
for over 2 years after construction began (Gilles et al., 2009). 
Approximately 10 years after construction of the Nysted wind farm, 
harbor porpoise abundance had not recovered to the original levels 
previously seen, although the echolocation activity was noted to have 
been increasing when compared to the previous monitoring period 
(Teilmann and Carstensen, 2012). However, overall, there are no 
indications for a population decline of harbor porpoises in European 
waters (e.g., Brandt et al., 2016) Notably, where significant 
differences in displacement and return rates have been identified for 
these species, the occurrence of secondary project-specific influences 
such as use of mitigation measures (e.g., bubble curtains, acoustic 
deterrent devices (ADDs)) or the manner in which species use the 
habitat in the project area are likely the driving factors of this 
variation.
    NMFS notes the aforementioned studies from Europe involve pile 
driving much smaller piles than Ocean Wind proposes to install and 
therefore we anticipate noise levels from impact pile driving to be 
louder. For this reason, we anticipate that the greater distances of 
displacement observed in harbor porpoise and harbor seals documented in 
Europe are likely to occur off of New Jersey. However, we do not 
anticipate any greater severity of response due to harbor porpoise and 
harbor seal habitat use off of New Jersey or population level 
consequences, similar to European findings. In many cases, harbor 
porpoises and harbor seals are resident to the areas where European 
wind farms have been constructed. However, off of New Jersey, harbor 
porpoises are transient (in winter when impact pile driving would not 
occur) and a very small percentage of the large harbor seal population 
are only seasonally present with no rookeries established. In summary, 
we anticipate that harbor porpoise and harbor seals will likely respond 
to pile driving by moving several kilometers away from the source; 
however, this impact would be temporary and, based on habitat use, not 
impact any critical behaviors such as foraging or calving/pupping.
    It should also be noted that the only studies available on marine 
mammal responses to offshore wind-related pile driving have focused on 
species which are known to be more behaviorally sensitive to auditory 
stimuli than the other species that occur in the project area. 
Therefore, the documented behavioral responses of harbor porpoises and 
harbor seals to pile driving in Europe should be considered as a worst-
case scenario in terms of the potential responses among all marine 
mammals to offshore pile driving, and these responses cannot reliably 
predict the responses that will occur in other marine mammal species.
    Longer term or repetitive/chronic displacement for some dolphin 
groups and for manatees has been suggested to be due to the presence of 
chronic vessel noise (Haviland-Howell et al., 2007; Miksis-Olds et al., 
2007). The context of the noise exposure has been shown to play an 
important role in the response. In the 2007-2008 Bahamas study, 
playback sounds of a potential predator--a killer whale--resulted in a 
similar but more pronounced reaction, which included longer inter-dive 
intervals and a sustained straight-line departure of more than 20 km 
from the area (Boyd et al., 2008; Southall et al., 2009; Tyack et al., 
2011). Southall et al. (2011) found that blue whales had a different 
response to sonar exposure depending on behavioral state, more 
pronounced when deep feeding/travel modes than when engaged in surface 
feeding.
    Forney et al. (2017) detailed the potential effects of noise on 
marine mammal populations with high site fidelity, including 
displacement and auditory masking, noting that a lack of observed 
response does not imply absence of fitness costs and that apparent 
tolerance of disturbance may have population-level impacts that are 
less obvious and difficult to document. Avoidance of overlap between 
disturbing noise and areas and/or times of particular importance for 
sensitive species may be critical to avoiding population-level impacts 
because (particularly for animals with high site fidelity) there may be 
a strong motivation to remain in the area despite negative impacts. 
Forney et al. (2017) stated that, for these animals, remaining in a 
disturbed area may reflect a lack of alternatives rather than a lack of 
effects. Forney et al. discusses several case studies, including 
western Pacific gray whales, which are a small population of mysticetes 
believed to be adversely affected by oil and gas development off 
Sakhalin Island, Russia (Weller et al., 2002; Reeves et al., 2005). 
Western gray whales display a high degree of inter-annual site fidelity 
to the area for foraging purposes, and observations in the area during 
air gun surveys has shown the potential for harm caused by displacement 
from such an important area (Weller et al., 2006; Johnson et al., 
2007). Forney et al. (2017) also discuss beaked whales, noting that 
anthropogenic effects in areas where they are resident could cause 
severe biological consequences, in part because displacement may 
adversely affect foraging rates, reproduction, or health, while an 
overriding instinct to remain could lead to more severe acute effects.
    Tyack and Clark (1983) conducted playback studies of SURTASS low 
frequency active (LFA) sonar in a gray whale migratory corridor off 
California. Similar to North Atlantic right whales, gray whales migrate 
close to shore (approximately +2 kms) and are low frequency hearing 
specialists. The LFA sonar source was placed within the gray whale 
migratory corridor (approximately 2 km offshore) and offshore of most, 
but not all, migrating whales (approximately 4 km offshore). These 
locations influenced received levels and distance to the source. For 
the inshore playbacks, not unexpectedly, the louder the source level of 
the playback (i.e., the louder the received level), whale avoided the 
source at greater distances. Specifically, when the source level was 
170 dB rms and 178 dB rms, whales avoided the

[[Page 64896]]

inshore source at ranges of several hundred meters, similar to 
avoidance responses reported by Malme et al. (1983, 1984). Whales 
exposed to source levels of 185 dB rms demonstrated avoidance levels at 
larger ranges of +1 km. Responses to the offshore source broadcasting 
at source levels of 185 and 200 dB, avoidance responses were greatly 
reduced. While there was observed deflection from course, in no case 
did a whale abandon its migratory behavior.

Flight Response

    A flight response is a dramatic change in normal movement to a 
directed and rapid movement away from the perceived location of a sound 
source. The flight response differs from other avoidance responses in 
the intensity of the response (e.g., directed movement, rate of 
travel). Relatively little information on flight responses of marine 
mammals to anthropogenic signals exist, although observations of flight 
responses to the presence of predators have occurred (Connor and 
Heithaus, 1996; Frid and Dill, 2002). The result of a flight response 
could range from brief, temporary exertion and displacement from the 
area where the signal provokes flight to, in extreme cases, beaked 
whale strandings (Cox et al., 2006; D'Amico et al., 2009). However, it 
should be noted that response to a perceived predator does not 
necessarily invoke flight (Ford and Reeves, 2008), and whether 
individuals are solitary or in groups may influence the response. 
Flight responses of marine mammals have been documented in response to 
mobile high intensity active sonar (e.g., Tyack et al., 2011; DeRuiter 
et al., 2013; Wensveen et al., 2019), and more severe responses have 
been documented when sources are moving towards an animal or when they 
are surprised by unpredictable exposures (Watkins, 1986; Falcone et 
al., 2017). Generally speaking, however, marine mammals would be 
expected to be less likely to respond with a flight response to either 
stationery pile driving (which they can sense is stationery and 
predictable) or significantly lower-level HRG surveys, unless they are 
within the area ensonified above behavioral harassment thresholds at 
the moment the source is turned on (Watkins, 1986; Falcone et al., 
2017).

Alteration of Diving or Movement

    Changes in dive behavior can vary widely. They may consist of 
increased or decreased dive times and surface intervals as well as 
changes in the rates of ascent and descent during a dive (e.g., Frankel 
and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et 
al., 2004; Goldbogen et al., 2013a, 2013b). Variations in dive behavior 
may reflect interruptions in biologically significant activities (e.g., 
foraging) or they may be of little biological significance. Variations 
in dive behavior may also expose an animal to potentially harmful 
conditions (e.g., increasing the chance of ship-strike) or may serve as 
an avoidance response that enhances survivorship. The impact of a 
variation in diving resulting from an acoustic exposure depends on what 
the animal is doing at the time of the exposure and the type and 
magnitude of the response.
    Nowacek et al. (2004) reported disruptions of dive behaviors in 
foraging North Atlantic right whales when exposed to an alerting 
stimulus, an action, they noted, that could lead to an increased 
likelihood of ship strike. However, the whales did not respond to 
playbacks of either right whale social sounds or vessel noise, 
highlighting the importance of the sound characteristics in producing a 
behavioral reaction. Conversely, Indo-Pacific humpback dolphins have 
been observed to dive for longer periods of time in areas where vessels 
were present and/or approaching (Ng and Leung, 2003). In both of these 
studies, the influence of the sound exposure cannot be decoupled from 
the physical presence of a surface vessel, thus complicating 
interpretations of the relative contribution of each stimulus to the 
response. Indeed, the presence of surface vessels, their approach, and 
speed of approach, seemed to be significant factors in the response of 
the Indo-Pacific humpback dolphins (Ng and Leung, 2003). Low frequency 
signals of the Acoustic Thermometry of Ocean Climate (ATOC) sound 
source were not found to affect dive times of humpback whales in 
Hawaiian waters (Frankel and Clark, 2000) or to overtly affect elephant 
seal dives (Costa et al., 2003). They did, however, produce subtle 
effects that varied in direction and degree among the individual seals, 
illustrating the equivocal nature of behavioral effects and consequent 
difficulty in defining and predicting them. Lastly, as noted 
previously, DeRuiter et al. (2013) noted that distance from a sound 
source may moderate marine mammal reactions in their study of Cuvier's 
beaked whales, which showed the whales swimming rapidly and silently 
away when a sonar signal was 3.4-9.5 km away while showing no such 
reaction to the same signal when the signal was 118 km away even though 
the received levels were similar.

Foraging

    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation, as well as 
differences in species sensitivity, are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al., 2004; Madsen et al., 2006a; Yazvenko et al., 
2007; Southall et al., 2019b). An understanding of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal can facilitate the assessment of whether foraging 
disruptions are likely to incur fitness consequences (Goldbogen et al., 
2013; Farmer et al., 2018; Pirotta et al., 2018; Southall et al., 2019; 
Pirotta et al., 2021).
    Impacts on marine mammal foraging rates from noise exposure have 
been extensively documented, though there is little data regarding the 
impacts of offshore turbine construction specifically. Several broader 
examples follow, and it is reasonable to expect that exposure to noise 
produced during the 5-years the proposed rule would be effective could 
have similar impacts.
    Visual tracking, passive acoustic monitoring, and movement 
recording tags were used to quantify sperm whale behavior prior to, 
during, and following exposure to air gun arrays at received levels in 
the range 140-160 dB at distances of 7-13 km, following a phase-in of 
sound intensity and full array exposures at 1-13 km (Madsen et al., 
2006a; Miller et al., 2009). Sperm whales did not exhibit horizontal 
avoidance behavior at the surface. However, foraging behavior may have 
been affected. The sperm whales exhibited 19 percent less vocal (buzz) 
rate during full exposure relative to post exposure, and the whale that 
was approached most closely had an extended resting period and did not 
resume foraging until the air guns had ceased firing. The remaining 
whales continued to execute foraging dives throughout exposure; 
however, swimming movements during foraging dives were 6 percent lower 
during exposure than control periods (Miller et al., 2009). Miller et 
al. (2009) noted that

[[Page 64897]]

more data are required to understand whether the differences were due 
to exposure or natural variation in sperm whale behavior.
    Balaenopterid whales exposed to moderate low-frequency signals 
similar to the ATOC sound source demonstrated no variation in foraging 
activity (Croll et al., 2001), whereas five out of six North Atlantic 
right whales exposed to an acoustic alarm interrupted their foraging 
dives (Nowacek et al., 2004). Although the received SPLs were similar 
in the latter two studies, the frequency, duration, and temporal 
pattern of signal presentation were different. These factors, as well 
as differences in species sensitivity, are likely contributing factors 
to the differential response. Blue whales exposed to mid-frequency 
sonar in the Southern California Bight were less likely to produce low 
frequency calls usually associated with feeding behavior (Melc[oacute]n 
et al., 2012). However, Melc[oacute]n et al. (2012) were unable to 
determine if suppression of low frequency calls reflected a change in 
their feeding performance or abandonment of foraging behavior and 
indicated that implications of the documented responses are unknown. 
Further, it is not known whether the lower rates of calling actually 
indicated a reduction in feeding behavior or social contact since the 
study used data from remotely deployed, passive acoustic monitoring 
buoys. In contrast, blue whales increased their likelihood of calling 
when ship noise was present, and decreased their likelihood of calling 
in the presence of explosive noise, although this result was not 
statistically significant (Melc[oacute]n et al., 2012). Additionally, 
the likelihood of an animal calling decreased with the increased 
received level of mid-frequency sonar, beginning at a SPL of 
approximately 110-120 dB referenced to a pressure of 1 microPascal (re 
1 [micro]Pa) (Melc[oacute]n et al., 2012). Results from the 2010-2011 
field season of a behavioral response study in Southern California 
waters indicated that, in some cases and at low received levels, tagged 
blue whales responded to mid-frequency sonar but that those responses 
were mild and there was a quick return to their baseline activity 
(Southall et al., 2011; Southall et al., 2012b; Southall et al., 
2019b). Information on or estimates of the energetic requirements of 
the individuals and the relationship between prey availability, 
foraging effort and success, and the life history stage of the animal 
will help better inform a determination of whether foraging disruptions 
incur fitness consequences. Surface feeding blue whales did not show a 
change in behavior in response to mid-frequency simulated and real 
sonar sources with received levels between 90 and 179 dB re 1 
[micro]Pa, but deep feeding and non-feeding whales showed temporary 
reactions including cessation of feeding, reduced initiation of deep 
foraging dives, generalized avoidance responses, and changes to dive 
behavior (DeRuiter et al., 2017; Goldbogen et al., 2013b; Sivle et al., 
2015). Goldbogen et al. (2013b) indicate that disruption of feeding and 
displacement could impact individual fitness and health. However, for 
this to be true, we would have to assume that an individual whale could 
not compensate for this lost feeding opportunity by either immediately 
feeding at another location, by feeding shortly after cessation of 
acoustic exposure, or by feeding at a later time. There is no 
indication this is the case, particularly since unconsumed prey would 
likely still be available in the environment in most cases following 
the cessation of acoustic exposure.
    Similarly, while the rates of foraging lunges decrease in humpback 
whales due to sonar exposure, there was variability in the response 
across individuals, with one animal ceasing to forage completely and 
another animal starting to forage during the exposure (Sivle et al., 
2016). In addition, almost half of the animals that demonstrated 
avoidance were foraging before the exposure but the others were not; 
the animals that avoided while not feeding responded at a slightly 
lower received level and greater distance than those that were feeding 
(Wensveen et al., 2017). These findings indicate that the behavioral 
state of the animal plays a role in the type and severity of a 
behavioral response. In fact, when the prey field was mapped and used 
as a covariate in similar models looking for a response in the same 
blue whales, the response in deep-feeding behavior by blue whales was 
even more apparent, reinforcing the need for contextual variables to be 
included when assessing behavioral responses (Friedlaender et al., 
2016).

Breathing

    Respiration naturally varies with different behaviors and 
variations in respiration rate as a function of acoustic exposure can 
be expected to co-occur with other behavioral reactions, such as a 
flight response or an alteration in diving. However, respiration rates 
in and of themselves may be representative of annoyance or an acute 
stress response. Mean exhalation rates of gray whales at rest and while 
diving were found to be unaffected by seismic surveys conducted 
adjacent to the whale feeding grounds (Gailey et al., 2007). Studies 
with captive harbor porpoises showed increased respiration rates upon 
introduction of acoustic alarms (Kastelein et al., 2001; Kastelein et 
al., 2006a) and emissions for underwater data transmission (Kastelein 
et al., 2005). However, exposure of the same acoustic alarm to a 
striped dolphin under the same conditions did not elicit a response 
(Kastelein et al., 2006a), again highlighting the importance in 
understanding species differences in the tolerance of underwater noise 
when determining the potential for impacts resulting from anthropogenic 
sound exposure.

Vocalizations (Also See the Auditory Masking Section)

    Marine mammals vocalize for different purposes and across multiple 
modes, such as whistling, echolocation click production, calling, and 
singing. Changes in vocalization behavior in response to anthropogenic 
noise can occur for any of these modes and may result directly from 
increased vigilance (also see the Potential Effects of Behavioral 
Disturbance on Marine Mammal Fitness section) or a startle response, or 
from a need to compete with an increase in background noise (see Erbe 
et al., 2016 review on communication masking), the latter of which is 
described more in the Auditory Masking section below.
    For example, in the presence of potentially masking signals, 
humpback whales and killer whales have been observed to increase the 
length of their songs (Miller et al., 2000; Fristrup et al., 2003; 
Foote et al., 2004) and blue increased song production (Di Iorio and 
Clark, 2010), while North Atlantic right whales have been observed to 
shift the frequency content of their calls upward while reducing the 
rate of calling in areas of increased anthropogenic noise (Parks et 
al., 2007). In some cases, animals may cease or reduce sound production 
during production of aversive signals (Bowles et al., 1994; Thode et 
al., 2020; Cerchio et al., (2014); McDonald et al., (1995)). Blackwell 
et al. (2015) showed that whales increased calling rates as soon as air 
gun signals were detectable before ultimately decreasing calling rates 
at higher received levels.

Orientation

    A shift in an animal's resting state or an attentional change via 
an orienting response represent behaviors that would be considered mild 
disruptions if occurring alone. As previously

[[Page 64898]]

mentioned, the responses may co-occur with other behaviors; for 
instance, an animal may initially orient toward a sound source, and 
then move away from it. Thus, any orienting response should be 
considered in context of other reactions that may occur.

Habituation and Sensitization

    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. It is important to note that 
habituation is appropriately considered as a ``progressive reduction in 
response to stimuli that are perceived as neither aversive nor 
beneficial,'' rather than as, more generally, moderation in response to 
human disturbance having a neutral or positive outcome (Bejder et al., 
2009). The opposite process is sensitization, when an unpleasant 
experience leads to subsequent responses, often in the form of 
avoidance, at a lower level of exposure. Both habituation and 
sensitization require an ongoing learning process. As noted, behavioral 
state may affect the type of response. For example, animals that are 
resting may show greater behavioral change in response to disturbing 
sound levels than animals that are highly motivated to remain in an 
area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 
2003; Southall et al., 2019b). Controlled experiments with captive 
marine mammals have shown pronounced behavioral reactions, including 
avoidance of loud sound sources (e.g., Ridgway et al., 1997; Finneran 
et al., 2003; Houser et al., 2013a,b; Kastelein et al., 2018). Observed 
responses of wild marine mammals to loud impulsive sound sources 
(typically airguns or acoustic harassment devices) have been varied but 
often include avoidance behavior or other behavioral changes suggesting 
discomfort (Morton and Symonds, 2002; see also Richardson et al., 1995; 
Nowacek et al., 2007; Tougaard et al., 2009; Brandt et al., 2011, 
Brandt et al., 2012, D[auml]hne et al., 2013; Brandt et al., 2014; 
Russell et al., 2016; Brandt et al., 2018). However, many delphinids 
approach low-frequency airgun source vessels with no apparent 
discomfort or obvious behavioral change (e.g., Barkaszi et al., 2012), 
indicating the importance of frequency output in relation to the 
species' hearing sensitivity.

Stress Response

    An animal's perception of a threat may be sufficient to trigger 
stress responses consisting of some combination of behavioral 
responses, autonomic nervous system responses, neuroendocrine 
responses, or immune responses (e.g., Seyle, 1950; Moberg, 2000). In 
many cases, an animal's first and sometimes most economical (in terms 
of energetic costs) response is behavioral avoidance of the potential 
stressor. Autonomic nervous system responses to stress typically 
involve changes in heart rate, blood pressure, and gastrointestinal 
activity. These responses have a relatively short duration and may or 
may not have a significant long-term effect on an animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 
2000). Increases in the circulation of glucocorticoids are also equated 
with stress (Romano et al., 2004).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficient to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses are well studied through 
controlled experiments and for both laboratory and free-ranging animals 
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; 
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to 
exposure to anthropogenic sounds or other stressors and their effects 
on marine mammals have also been reviewed (Fair and Becker, 2000; 
Romano et al., 2002b) and, more rarely, studied in wild populations 
(e.g., Romano et al., 2002a). For example, Rolland et al. (2012) found 
that noise reduction from reduced ship traffic in the Bay of Fundy was 
associated with decreased stress in North Atlantic right whales. These 
and other studies lead to a reasonable expectation that some marine 
mammals will experience physiological stress responses upon exposure to 
acoustic stressors and that it is possible that some of these would be 
classified as ``distress.'' In addition, any animal experiencing TTS 
would likely also experience stress responses (NRC, 2003, 2017).

Auditory Masking

    Sound can disrupt behavior through masking, or interfering with, an 
animal's ability to detect, recognize, or discriminate between acoustic 
signals of interest (e.g., those used for intraspecific communication 
and social interactions, prey detection, predator avoidance, or 
navigation) (Richardson et al., 1995; Erbe and Farmer, 2000; Tyack, 
2000; Erbe et al., 2016). Masking occurs when the receipt of a sound is 
interfered with by another coincident sound at similar frequencies and 
at similar or higher intensity, and may occur whether the sound is 
natural (e.g., snapping shrimp, wind, waves, precipitation) or 
anthropogenic (e.g., shipping, sonar, seismic exploration) in origin. 
The ability of a noise source to mask biologically important sounds 
depends on the characteristics of both the noise source and the signal 
of interest (e.g., signal-to-noise ratio, temporal variability, 
direction), in relation to each other and to an animal's hearing 
abilities (e.g., sensitivity, frequency range, critical ratios, 
frequency discrimination, directional discrimination, age, or TTS 
hearing loss), and existing ambient noise and propagation conditions. 
Masking these acoustic signals can disturb the behavior of individual 
animals, groups of animals, or entire populations. Masking can lead to 
behavioral changes including vocal changes (e.g., Lombard effect, 
increasing amplitude, or changing frequency), cessation of foraging or 
lost foraging opportunities, and leaving an area, to both signalers and 
receivers, in an attempt to compensate for noise levels (Erbe et al., 
2016) or because sounds that would typically have triggered a behavior 
were not detected. In humans, significant masking of tonal signals 
occurs as a result of exposure to noise in a narrow band of similar 
frequencies. As the sound level increases, though, the detection of 
frequencies above those of

[[Page 64899]]

the masking stimulus decreases also. This principle is expected to 
apply to marine mammals as well because of common biomechanical 
cochlear properties across taxa.
    Therefore, when the coincident (masking) sound is man-made, it may 
be considered harassment when disrupting or altering critical 
behaviors. It is important to distinguish TTS and PTS, which persist 
after the sound exposure, from masking, which only occurs during the 
sound exposure. Because masking (without resulting in threshold shift) 
is not associated with abnormal physiological function, it is not 
considered a physiological effect, but rather a potential behavioral 
effect.
    The frequency range of the potentially masking sound is important 
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation 
sounds produced by odontocetes but are more likely to affect detection 
of mysticete communication calls and other potentially important 
natural sounds such as those produced by surf and some prey species. 
The masking of communication signals by anthropogenic noise may be 
considered as a reduction in the communication space of animals (e.g., 
Clark et al., 2009; Matthews et al., 2016) and may result in energetic 
or other costs as animals change their vocalization behavior (e.g., 
Miller et al., 2000; Foote et al., 2004; Parks et al., 2007; Di Iorio 
and Clark, 2009; Holt et al., 2009). Masking can be reduced in 
situations where the signal and noise come from different directions 
(Richardson et al., 1995), through amplitude modulation of the signal, 
or through other compensatory behaviors (Houser and Moore, 2014). 
Masking can be tested directly in captive species (e.g., Erbe, 2008), 
but in wild populations it must be either modeled or inferred from 
evidence of masking compensation. There are few studies addressing 
real-world masking sounds likely to be experienced by marine mammals in 
the wild (e.g., Branstetter et al., 2013; Cholewiak et al., 2018).
    The echolocation calls of toothed whales are subject to masking by 
high-frequency sound. Human data indicate low-frequency sound can mask 
high-frequency sounds (i.e., upward masking). Studies on captive 
odontocetes by Au et al. (1974, 1985, 1993) indicate that some species 
may use various processes to reduce masking effects (e.g., adjustments 
in echolocation call intensity or frequency as a function of background 
noise conditions). There is also evidence that the directional hearing 
abilities of odontocetes are useful in reducing masking at the high-
frequencies these cetaceans use to echolocate, but not at the low-to-
moderate frequencies they use to communicate (Zaitseva et al., 1980). A 
study by Nachtigall and Supin (2008) showed that false killer whales 
adjust their hearing to compensate for ambient sounds and the intensity 
of returning echolocation signals.
    Impacts on signal detection, measured by masked detection 
thresholds, are not the only important factors to address when 
considering the potential effects of masking. As marine mammals use 
sound to recognize conspecifics, prey, predators, or other biologically 
significant sources (Branstetter et al., 2016), it is also important to 
understand the impacts of masked recognition thresholds (often called 
``informational masking''). Branstetter et al. (2016) measured masked 
recognition thresholds for whistle-like sounds of bottlenose dolphins 
and observed that they are approximately 4 dB above detection 
thresholds (energetic masking) for the same signals. Reduced ability to 
recognize a conspecific call or the acoustic signature of a predator 
could have severe negative impacts. Branstetter et al. (2016) observed 
that if ``quality communication'' is set at 90 percent recognition the 
output of communication space models (which are based on 50 percent 
detection) would likely result in a significant decrease in 
communication range.
    As marine mammals use sound to recognize predators (Allen et al., 
2014; Cummings and Thompson, 1971; Cur[eacute] et al., 2015; Fish and 
Vania, 1971), the presence of masking noise may also prevent marine 
mammals from responding to acoustic cues produced by their predators, 
particularly if it occurs in the same frequency band. For example, 
harbor seals that reside in the coastal waters off British Columbia are 
frequently targeted by mammal-eating killer whales. The seals 
acoustically discriminate between the calls of mammal-eating and fish-
eating killer whales (Deecke et al., 2002), a capability that should 
increase survivorship while reducing the energy required to attend to 
all killer whale calls. Similarly, sperm whales (Cur[eacute] et al., 
2016; Isojunno et al., 2016), long-finned pilot whales (Visser et al., 
2016), and humpback whales (Cur[eacute] et al., 2015) changed their 
behavior in response to killer whale vocalization playbacks; these 
findings indicate that some recognition of predator cues could be 
missed if the killer whale vocalizations were masked. The potential 
effects of masked predator acoustic cues depends on the duration of the 
masking noise and the likelihood of a marine mammal encountering a 
predator during the time that detection and recognition of predator 
cues are impeded.
    Redundancy and context can also facilitate detection of weak 
signals. These phenomena may help marine mammals detect weak sounds in 
the presence of natural or manmade noise. Most masking studies in 
marine mammals present the test signal and the masking noise from the 
same direction. The dominant background noise may be highly directional 
if it comes from a particular anthropogenic source such as a ship or 
industrial site. Directional hearing may significantly reduce the 
masking effects of these sounds by improving the effective signal-to-
noise ratio.
    Masking affects both senders and receivers of acoustic signals and, 
at higher levels and longer duration, can potentially have long-term 
chronic effects on marine mammals at the population level as well as at 
the individual level. Low-frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, with most of the increase 
from distant commercial shipping (Hildebrand, 2009; Cholewiak et al., 
2018). All anthropogenic sound sources, but especially chronic and 
lower-frequency signals (e.g., from commercial vessel traffic), 
contribute to elevated ambient sound levels, thus intensifying masking.
    In addition to making it more difficult for animals to perceive and 
recognize acoustic cues in their environment, anthropogenic sound 
presents separate challenges for animals that are vocalizing. When they 
vocalize, animals are aware of environmental conditions that affect the 
``active space'' (or communication space) of their vocalizations, which 
is the maximum area within which their vocalizations can be detected 
before it drops to the level of ambient noise (Brenowitz, 2004; Brumm 
et al., 2004; Lohr et al., 2003). Animals are also aware of 
environmental conditions that affect whether listeners can discriminate 
and recognize their vocalizations from other sounds, which is more 
important than simply detecting that a vocalization is occurring 
(Brenowitz, 1982; Brumm et al., 2004; Dooling, 2004, Marten and Marler, 
1977; Patricelli et al., 2006). Most species that vocalize have evolved 
with an ability to make adjustments to their vocalizations to increase 
the signal-to-noise ratio, active space, and recognizability/
distinguishability of their vocalizations in the face of

[[Page 64900]]

temporary changes in background noise (Brumm et al., 2004; Patricelli 
et al., 2006). Vocalizing animals can make adjustments to vocalization 
characteristics such as the frequency structure, amplitude, temporal 
structure, and temporal delivery (repetition rate), or ceasing to 
vocalize.
    Many animals will combine several of these strategies to compensate 
for high levels of background noise. Anthropogenic sounds that reduce 
the signal-to-noise ratio of animal vocalizations, increase the masked 
auditory thresholds of animals listening for such vocalizations, or 
reduce the active space of an animal's vocalizations impair 
communication between animals. Most animals that vocalize have evolved 
strategies to compensate for the effects of short-term or temporary 
increases in background or ambient noise on their songs or calls. 
Although the fitness consequences of these vocal adjustments are not 
directly known in all instances, like most other trade-offs animals 
must make, some of these strategies probably come at a cost (Patricelli 
et al., 2006; Noren et al., 2017; Noren et al., 2020). Shifting songs 
and calls to higher frequencies may also impose energetic costs 
(Lambrechts, 1996).
    Marine mammals are also known to make vocal changes in response to 
anthropogenic noise. In cetaceans, vocalization changes have been 
reported from exposure to anthropogenic noise sources such as sonar, 
vessel noise, and seismic surveying (see the following for examples: 
Gordon et al., 2003; Di Iorio and Clark, 2010; Hatch et al., 2012; Holt 
et al., 2008; Holt et al., 2011; Lesage et al., 1999; McDonald et al., 
2009; Parks et al., 2007, Risch et al., 2012, Rolland et al., 2012), as 
well as changes in the natural acoustic environment (Dunlop et al., 
2014). Vocal changes can be temporary, or can be persistent. For 
example, model simulation suggests that the increase in starting 
frequency for the North Atlantic right whale upcall over the last 50 
years resulted in increased detection ranges between right whales. The 
frequency shift, coupled with an increase in call intensity by 20 dB, 
led to a call detectability range of less than 3 km to over 9 km 
(Tennessen and Parks, 2016). Holt et al. (2008) measured killer whale 
call source levels and background noise levels in the one to 40 kHz 
band and reported that the whales increased their call source levels by 
one dB SPL for every one dB SPL increase in background noise level. 
Similarly, another study on St. Lawrence River belugas reported a 
similar rate of increase in vocalization activity in response to 
passing vessels (Scheifele et al., 2005). Di Iorio and Clark (2010) 
showed that blue whale calling rates vary in association with seismic 
sparker survey activity, with whales calling more on days with surveys 
than on days without surveys. They suggested that the whales called 
more during seismic survey periods as a way to compensate for the 
elevated noise conditions.
    In some cases, these vocal changes may have fitness consequences, 
such as an increase in metabolic rates and oxygen consumption, as 
observed in bottlenose dolphins when increasing their call amplitude 
(Holt et al., 2015). A switch from vocal communication to physical, 
surface-generated sounds such as pectoral fin slapping or breaching was 
observed for humpback whales in the presence of increasing natural 
background noise levels, indicating that adaptations to masking may 
also move beyond vocal modifications (Dunlop et al., 2010).
    While these changes all represent possible tactics by the sound-
producing animal to reduce the impact of masking, the receiving animal 
can also reduce masking by using active listening strategies such as 
orienting to the sound source, moving to a quieter location, or 
reducing self-noise from hydrodynamic flow by remaining still. The 
temporal structure of noise (e.g., amplitude modulation) may also 
provide a considerable release from masking through comodulation 
masking release (a reduction of masking that occurs when broadband 
noise, with a frequency spectrum wider than an animal's auditory filter 
bandwidth at the frequency of interest, is amplitude modulated) 
(Branstetter and Finneran, 2008; Branstetter et al., 2013). Signal type 
(e.g., whistles, burst-pulse, sonar clicks) and spectral 
characteristics (e.g., frequency modulated with harmonics) may further 
influence masked detection thresholds (Branstetter et al., 2016; 
Cunningham et al., 2014).
    Masking is more likely to occur in the presence of broadband, 
relatively continuous noise sources such as vessels. Several studies 
have shown decreases in marine mammal communication space and changes 
in behavior as a result of the presence of vessel noise. For example, 
right whales were observed to shift the frequency content of their 
calls upward while reducing the rate of calling in areas of increased 
anthropogenic noise (Parks et al., 2007) as well as increasing the 
amplitude (intensity) of their calls (Parks, 2009; Parks et al., 2011). 
Clark et al. (2009) also observed that right whales' communication 
space decreased by up to 84 percent in the presence of vessels. 
Cholewiak et al. (2018) also observed loss in communication space in 
Stellwagen National Marine Sanctuary for North Atlantic right whales, 
fin whales, and humpback whales with increased ambient noise and 
shipping noise. Although humpback whales off Australia did not change 
the frequency or duration of their vocalizations in the presence of 
ship noise, their source levels were lower than expected based on 
source level changes to wind noise, potentially indicating some signal 
masking (Dunlop, 2016). Multiple delphinid species have also been shown 
to increase the minimum or maximum frequencies of their whistles in the 
presence of anthropogenic noise and reduced communication space (for 
examples see: Holt et al., 2008; Holt et al., 2011; Gervaise et al., 
2012; Williams et al., 2013; Hermannsen et al., 2014; Papale et al., 
2015; Liu et al., 2017). While masking impacts are not a concern from 
lower intensity, higher frequency HRG surveys, some degree of masking 
would be expected in the vicinity of turbine pile driving and 
concentrated support vessel operation.

Explosive Sources

    Underwater explosive detonations send a shock wave and sound energy 
through the water and can release gaseous by-products, create an 
oscillating bubble, or cause a plume of water to shoot up from the 
water surface. The shock wave and accompanying noise are of most 
concern to marine animals. Depending on the intensity of the shock wave 
and size, location, and depth of the animal, an animal can be injured, 
killed, suffer non-lethal physical effects, experience hearing related 
effects with or without behavioral responses, or exhibit temporary 
behavioral responses or tolerance from hearing the blast sound. 
Generally, exposures to higher levels of impulse and pressure levels 
would result in greater impacts to an individual animal.
    Injuries resulting from a shock wave take place at boundaries 
between tissues of different densities. Different velocities are 
imparted to tissues of different densities, and this can lead to their 
physical disruption. Blast effects are greatest at the gas-liquid 
interface (Landsberg, 2000). Gas-containing organs, particularly the 
lungs and gastrointestinal tract, are especially susceptible (Goertner, 
1982; Hill, 1978; Yelverton et al., 1973). Intestinal walls can bruise 
or rupture, with subsequent hemorrhage and escape of gut contents into 
the body cavity. Less severe gastrointestinal tract injuries include 
contusions, petechiae (small red or

[[Page 64901]]

purple spots caused by bleeding in the skin), and slight hemorrhaging 
(Yelverton et al., 1973).
    Because the ears are the most sensitive to pressure, they are the 
organs most sensitive to injury (Ketten, 2000). Sound-related damage 
associated with sound energy from detonations can be theoretically 
distinct from injury from the shock wave, particularly farther from the 
explosion. If a noise is audible to an animal, it has the potential to 
damage the animal's hearing by causing decreased sensitivity (Ketten, 
1995). Lethal impacts are those that result in immediate death or 
serious debilitation in or near an intense source and are not, 
technically, pure acoustic trauma (Ketten, 1995). Sublethal impacts 
include hearing loss, which is caused by exposures to perceptible 
sounds. Severe damage (from the shock wave) to the ears includes 
tympanic membrane rupture, fracture of the ossicles, and damage to the 
cochlea, hemorrhage, and cerebrospinal fluid leakage into the middle 
ear. Moderate injury implies partial hearing loss due to tympanic 
membrane rupture and blood in the middle ear. Permanent hearing loss 
also can occur when the hair cells are damaged by one very loud event, 
as well as by prolonged exposure to a loud noise or chronic exposure to 
noise. The level of impact from blasts depends on both an animal's 
location and, at outer zones, on its sensitivity to the residual noise 
(Ketten, 1995).
    Given the mitigation measures proposed, and the small number of 
detonations proposed, it is unlikely that any of the more serious 
injuries or mortality discussed above are likely to result from any 
UXO/MEC detonation that Ocean Wind might need to undertake. TTS and 
brief startle reactions are the most likely impacts to result from this 
activity.

Potential Effects of Behavioral Disturbance on Marine Mammal Fitness

    The different ways that marine mammals respond to sound are 
sometimes indicators of the ultimate effect that exposure to a given 
stimulus will have on the well-being (survival, reproduction, etc.) of 
an animal. There is little quantitative marine mammal data relating the 
exposure of marine mammals from sound to effects on reproduction or 
survival, though data exists for terrestrial species to which we can 
draw comparisons for marine mammals. Several authors have reported that 
disturbance stimuli may cause animals to abandon nesting and foraging 
sites (Sutherland and Crockford, 1993); may cause animals to increase 
their activity levels and suffer premature deaths or reduced 
reproductive success when their energy expenditures exceed their energy 
budgets (Daan et al., 1996; Feare, 1976; Mullner et al., 2004); or may 
cause animals to experience higher predation rates when they adopt 
risk-prone foraging or migratory strategies (Frid and Dill, 2002). Each 
of these studies addressed the consequences of animals shifting from 
one behavioral state (e.g., resting or foraging) to another behavioral 
state (e.g., avoidance or escape behavior) because of human disturbance 
or disturbance stimuli.
    One consequence of behavioral avoidance results in the altered 
energetic expenditure of marine mammals because energy is required to 
move and avoid surface vessels or the sound field associated with 
active sonar (Frid and Dill, 2002). Most animals can avoid that 
energetic cost by swimming away at slow speeds or speeds that minimize 
the cost of transport (Miksis-Olds, 2006), as has been demonstrated in 
Florida manatees (Miksis-Olds, 2006).
    Those energetic costs increase, however, when animals shift from a 
resting state, which is designed to conserve an animal's energy, to an 
active state that consumes energy the animal would have conserved had 
it not been disturbed. Marine mammals that have been disturbed by 
anthropogenic noise and vessel approaches are commonly reported to 
shift from resting to active behavioral states, which would imply that 
they incur an energy cost.
    Morete et al., (2007) reported that undisturbed humpback whale cows 
that were accompanied by their calves were frequently observed resting 
while their calves circled them (milling). When vessels approached, the 
amount of time cows and calves spent resting and milling, respectively, 
declined significantly. These results are similar to those reported by 
Scheidat et al. (2004) for the humpback whales they observed off the 
coast of Ecuador.
    Constantine and Brunton (2001) reported that bottlenose dolphins in 
the Bay of Islands, New Zealand engaged in resting behavior just 5 
percent of the time when vessels were within 300 m, compared with 83 
percent of the time when vessels were not present. However, Heenehan et 
al. (2016) report that results of a study of the response of Hawaiian 
spinner dolphins (Stenella longirostris) to human disturbance suggest 
that the key factor is not the sheer presence or magnitude of human 
activities, but rather the directed interactions and dolphin-focused 
activities that elicit responses from dolphins at rest. This 
information again illustrates the importance of context in regard to 
whether an animal will respond to a stimulus. Miksis-Olds (2006) and 
Miksis-Olds et al. (2005) reported that Florida manatees in Sarasota 
Bay, Florida, reduced the amount of time they spent milling and 
increased the amount of time they spent feeding when background noise 
levels increased. Although the acute costs of these changes in behavior 
are not likely to exceed an animal's ability to compensate, the chronic 
costs of these behavioral shifts are uncertain.
    Attention is the cognitive process of selectively concentrating on 
one aspect of an animal's environment while ignoring other things 
(Posner, 1994). Because animals (including humans) have limited 
cognitive resources, there is a limit to how much sensory information 
they can process at any time. The phenomenon called ``attentional 
capture'' occurs when a stimulus (usually a stimulus that an animal is 
not concentrating on or attending to) ``captures'' an animal's 
attention. This shift in attention can occur consciously or 
subconsciously (for example, when an animal hears sounds that it 
associates with the approach of a predator) and the shift in attention 
can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has 
captured an animal's attention, the animal can respond by ignoring the 
stimulus, assuming a ``watch and wait'' posture, or treat the stimulus 
as a disturbance and respond accordingly, which includes scanning for 
the source of the stimulus or ``vigilance'' (Cowlishaw et al., 2004).
    Vigilance is an adaptive behavior that helps animals determine the 
presence or absence of predators, assess their distance from 
conspecifics, or to attend cues from prey (Bednekoff and Lima, 1998; 
Treves, 2000). Despite those benefits, however, vigilance has a cost of 
time; when animals focus their attention on specific environmental 
cues, they are not attending to other activities such as foraging or 
resting. These effects have generally not been demonstrated for marine 
mammals, but studies involving fish and terrestrial animals have shown 
that increased vigilance may substantially reduce feeding rates (Saino, 
1994; Beauchamp and Livoreil, 1997; Fritz et al., 2002; Purser and 
Radford, 2011). Animals will spend more time being vigilant, which may 
translate to less time foraging or resting, when disturbance stimuli 
approach them more directly, remain at closer distances, have a greater 
group size (e.g., multiple surface vessels), or when they co-occur with 
times that an animal perceives increased risk (e.g., when they are 
giving birth or

[[Page 64902]]

accompanied by a calf). Most of the published literature, however, 
suggests that direct approaches will increase the amount of time 
animals will dedicate to being vigilant. An example of this concept 
with terrestrial species involved bighorn sheep and Dall's sheep, which 
dedicated more time being vigilant, and less time resting or foraging, 
when aircraft made direct approaches over them (Frid, 2001; Stockwell 
et al., 1991). Vigilance has also been documented in pinnipeds at haul 
out sites where resting may be disturbed when seals become alerted and/
or flush into the water due to a variety of disturbances, which may be 
anthropogenic (noise and/or visual stimuli) or due to other natural 
causes such as other pinnipeds (Richardson et al., 1995; Southall et 
al., 2007; VanBlaricom, 2010; and Lozano and Hente, 2014).
    Chronic disturbance can cause population declines through reduction 
of fitness (e.g., decline in body condition) and subsequent reduction 
in reproductive success, survival, or both (e.g., Harrington and 
Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998). For example, 
Madsen (1994) reported that pink-footed geese (Anser brachyrhynchus) in 
undisturbed habitat gained body mass and had about a 46 percent 
reproductive success rate compared with geese in disturbed habitat 
(being consistently scared off the fields on which they were foraging) 
which did not gain mass and had a 17 percent reproductive success rate. 
Similar reductions in reproductive success have been reported for mule 
deer (Odocoileus hemionus) disturbed by all-terrain vehicles (Yarmoloy 
et al., 1988), caribou (Rangifer tarandus caribou) disturbed by seismic 
exploration blasts (Bradshaw et al., 1998), and caribou disturbed by 
low-elevation military jet fights (Luick et al., 1996, Harrington and 
Veitch, 1992). Similarly, a study of elk (Cervus elaphus) that were 
disturbed experimentally by pedestrians concluded that the ratio of 
young to mothers was inversely related to disturbance rate (Phillips 
and Alldredge, 2000). However, Ridgway et al. (2006) reported that 
increased vigilance in bottlenose dolphins exposed to sound over a 5-
day period in open-air, open-water enclosures in San Diego Bay did not 
cause any sleep deprivation or stress effects such as changes in 
cortisol or epinephrine levels.
    The primary mechanism by which increased vigilance and disturbance 
appear to affect the fitness of individual animals is by disrupting an 
animal's time budget and, as a result, reducing the time they might 
spend foraging and resting (which increases an animal's activity rate 
and energy demand while decreasing their caloric intake/energy). An 
example of this concept with terrestrial species involved a study of 
grizzly bears (Ursus horribilis) that reported that bears disturbed by 
hikers reduced their energy intake by an average of 12 kilocalories/min 
(50.2 x 103 kiloJoules/min), and spent energy fleeing or acting 
aggressively toward hikers (White et al., 1999).
    Lusseau and Bejder (2007) present data from three long-term studies 
illustrating the connections between disturbance from whale-watching 
boats and population-level effects in cetaceans. In Shark Bay, 
Australia, the abundance of bottlenose dolphins was compared within 
adjacent control and tourism sites over three consecutive 4.5-year 
periods of increasing tourism levels. Between the second and third time 
periods, in which tourism doubled, dolphin abundance decreased by 15 
percent in the tourism area and did not change significantly in the 
control area. In Fiordland, New Zealand, two populations (Milford and 
Doubtful Sounds) of bottlenose dolphins with tourism levels that 
differed by a factor of seven were observed and significant increases 
in traveling time and decreases in resting time were documented for 
both. Consistent short-term avoidance strategies were observed in 
response to tour boats until a threshold of disturbance was reached 
(average 68 minutes between interactions), after which the response 
switched to a longer-term habitat displacement strategy. For one 
population, tourism only occurred in a part of the home range. However, 
tourism occurred throughout the home range of the Doubtful Sound 
population and once boat traffic increased beyond the 68-minute 
threshold (resulting in abandonment of their home range/preferred 
habitat), reproductive success drastically decreased (increased 
stillbirths) and abundance decreased significantly (from 67 to 56 
individuals in a short period). Last, in a study of northern resident 
killer whales off Vancouver Island, exposure to boat traffic was shown 
to reduce foraging opportunities and increase traveling time. A simple 
bioenergetics model was applied to show that the reduced foraging 
opportunities equated to a decreased energy intake of 18 percent, while 
the increased traveling incurred an increased energy output of 3-4 
percent, which suggests that a management action based on avoiding 
interference with foraging might be particularly effective.
    On a related note, many animals perform vital functions, such as 
feeding, resting, traveling, and socializing, on a diel cycle (24-hr 
cycle). Behavioral reactions to noise exposure (such as disruption of 
critical life functions, displacement, or avoidance of important 
habitat) are more likely to be significant for fitness if they last 
more than one diel cycle or recur on subsequent days (Southall et al., 
2007). Consequently, a behavioral response lasting less than one day 
and not recurring on subsequent days is not considered particularly 
severe unless it could directly affect reproduction or survival 
(Southall et al., 2007). It is important to note the difference between 
behavioral reactions lasting or recurring over multiple days and 
anthropogenic activities lasting or recurring over multiple days. For 
example, just because certain activities last for multiple days does 
not necessarily mean that individual animals will be either exposed to 
those activity-related stressors (i.e., sonar) for multiple days or 
further, exposed in a manner that would result in sustained multi-day 
substantive behavioral responses; however, special attention is 
warranted where longer-duration activities overlay areas in which 
animals are known to congregate for longer durations for biologically 
important behaviors.
    Stone (2015a) reported data from at-sea observations during 1,196 
airgun surveys from 1994 to 2010. When large arrays of airguns 
(considered to be 500 in 3 or more) were firing, lateral displacement, 
more localized avoidance, or other changes in behavior were evident for 
most odontocetes. However, significant responses to large arrays were 
found only for the minke whale and fin whale. Behavioral responses 
observed included changes in swimming or surfacing behavior, with 
indications that cetaceans remained near the water surface at these 
times. Cetaceans were recorded as feeding less often when large arrays 
were active. Behavioral observations of gray whales during an air gun 
survey monitored whale movements and respirations pre-, during-, and 
post-seismic survey (Gailey et al., 2016). Behavioral state and water 
depth were the best `natural' predictors of whale movements and 
respiration and, after considering natural variation, none of the 
response variables were significantly associated with survey or vessel 
sounds.
    In order to understand how the effects of activities may or may not 
impact species and stocks of marine mammals, it is necessary to 
understand not only

[[Page 64903]]

what the likely disturbances are going to be, but how those 
disturbances may affect the reproductive success and survivorship of 
individuals, and then how those impacts to individuals translate to 
population-level effects. Following on the earlier work of a committee 
of the U.S. National Research Council (NRC, 2005), New et al. (2014), 
in an effort termed the Potential Consequences of Disturbance (PCoD), 
outline an updated conceptual model of the relationships linking 
disturbance to changes in behavior and physiology, health, vital rates, 
and population dynamics. In this framework, behavioral and 
physiological changes can have direct (acute) effects on vital rates, 
such as when changes in habitat use or increased stress levels raise 
the probability of mother-calf separation or predation; they can have 
indirect and long-term (chronic) effects on vital rates, such as when 
changes in time/energy budgets or increased disease susceptibility 
affect health, which then affects vital rates; or they can have no 
effect to vital rates (New et al., 2014). In addition to outlining this 
general framework and compiling the relevant literature that supports 
it, the authors chose four example species for which extensive long-
term monitoring data exist (southern elephant seals, North Atlantic 
right whales, Ziphiidae beaked whales, and bottlenose dolphins) and 
developed state-space energetic models that can be used to effectively 
forecast longer-term, population-level impacts from behavioral changes. 
While these are very specific models with very specific data 
requirements that cannot yet be applied broadly to project-specific 
risk assessments for the majority of species, they are a critical first 
step towards being able to quantify the likelihood of a population 
level effect.
    Since New et al. (2014), several publications have described models 
developed to examine the long-term effects of environmental or 
anthropogenic disturbance of foraging on various life stages of 
selected species (sperm whale, Farmer et al., (2018); California sea 
lion, McHuron et al., (2018); blue whale, Pirotta et al., (2018a)). 
These models continue to add to refinement of the approaches to the 
Population Consequences of Disturbance (PCOD) framework. Such models 
also help identify what data inputs require further investigation. 
Pirotta et al. (2018b) provides a review of the PCOD framework with 
details on each step of the process and approaches to applying real 
data or simulations to achieve each step.
    New et al. (2020) found that closed populations of dolphins could 
not withstand a higher probability of disturbance, compared to open 
populations with no limitation on food. Two bottlenose dolphin 
populations in Australia were also modeled over 5 years against a 
number of disturbances, (Reed et al., 2020) and results indicated that 
habitat/noise disturbance had little overall impact on population 
abundances in either location, even in the most extreme impact 
scenarios modeled. By integrating different sources of data (e.g., 
controlled exposure data, activity monitoring, telemetry tracking, and 
prey sampling) into a theoretical model to predict effects from sonar 
on a blue whale's daily energy intake, Pirotta et al. (2021) found that 
tagged blue whales' activity budgets, lunging rates, and ranging 
patterns caused variability in their predicted cost of disturbance. 
Dunlop et al. (2021) modeled migrating humpback whale mother-calf pairs 
in response to seismic surveys using both a forwards and backwards 
approach. While a typical forwards approach can determine if a stressor 
would have population-level consequences, Dunlop et al. demonstrated 
that working backwards through a PCoD model can be used to assess the 
``worst case'' scenario for an interaction of a target species and 
stressor. This method may be useful for future management goals when 
appropriate data becomes available to fully support the model. Harbor 
porpoise movement and foraging were modeled for baseline periods and 
then for periods with seismic surveys as well; the models demonstrated 
that the seasonality of the seismic activity was an important predictor 
of impact (Gallagher et al., 2021).
    Nearly all PCoD studies and experts agree that infrequent exposures 
of a single day or less are unlikely to impact individual fitness, let 
alone lead to population level effects (Booth et al., 2016; Booth et 
al., 2017; Christiansen and Lusseau 2015; Farmer et al., 2018; Wilson 
et al., 2020; Harwood and Booth 2016; King et al., 2015; McHuron et 
al., 2018; NAS 2017; New et al., 2014; Pirotta et al., 2018; Southall 
et al., 2007; Villegas-Amtmann et al., 2015). Since NMFS expects that 
any exposures would be very brief, and repeat exposures to the same 
individuals are unlikely, any behavioral responses that would occur due 
to animals being exposed to construction activity 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 level are anticipated. North Atlantic right whales may 
temporarily avoid the immediate area but are not expected to 
permanently abandon the area or their migratory behavior. 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 North Atlantic right whale takes that would result 
from the proposed project would impact annual rates of recruitment or 
survival. Thus, any takes that occur would not result in population 
level impacts.

Potential Effects of Vessel Strike

    Vessel collisions with marine mammals, also referred to as vessel 
strikes or ship strikes, can result in death or serious injury of the 
animal. Wounds resulting from ship strike may include massive trauma, 
hemorrhaging, broken bones, or propeller lacerations (Knowlton and 
Kraus, 2001). An animal at the surface could be struck directly by a 
vessel, a surfacing animal could hit the bottom of a vessel, or an 
animal just below the surface could be cut by a vessel's propeller. 
Superficial strikes may not kill or result in the death of the animal. 
Lethal interactions are typically associated with large whales, which 
are occasionally found draped across the bulbous bow of large 
commercial ships upon arrival in port. Although smaller cetaceans are 
more maneuverable in relation to large vessels than are large whales, 
they may also be susceptible to strike. The severity of injuries 
typically depends on the size and speed of the vessel (Knowlton and 
Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007; Conn and 
Silber, 2013). Impact forces increase with speed, as does the 
probability of a strike at a given distance (Silber et al., 2010; Gende 
et al., 2011).
    The most vulnerable marine mammals are those that spend extended 
periods of time at the surface in order to restore oxygen levels within 
their tissues after deep dives (e.g., the sperm whale). In addition, 
some baleen whales seem generally unresponsive to vessel sound, making 
them more susceptible to vessel collisions (Nowacek et al., 2004). 
These species are primarily large, slow moving whales. Marine mammal 
responses to vessels may include avoidance and changes in dive pattern 
(NRC, 2003).
    An examination of all known ship strikes from all shipping sources 
(civilian and military) indicates vessel

[[Page 64904]]

speed is a principal factor in whether a vessel strike occurs and, if 
so, whether it results in injury, serious injury, or mortality 
(Knowlton and Kraus, 2001; Laist et al., 2001; Jensen and Silber, 2003; 
Pace and Silber, 2005; Vanderlaan and Taggart, 2007; Conn and Silber 
2013). In assessing records in which vessel speed was known, Laist et 
al. (2001) found a direct relationship between the occurrence of a 
whale strike and the speed of the vessel involved in the collision. The 
authors concluded that most deaths occurred when a vessel was traveling 
in excess of 13 kn.
    Jensen and Silber (2003) detailed 292 records of known or probable 
ship strikes of all large whale species from 1975 to 2002. Of these, 
vessel speed at the time of collision was reported for 58 cases. Of 
these 58 cases, 39 (or 67 percent) resulted in serious injury or death 
(19 of those resulted in serious injury as determined by blood in the 
water, propeller gashes or severed tailstock, and fractured skull, jaw, 
vertebrae, hemorrhaging, massive bruising or other injuries noted 
during necropsy and 20 resulted in death). Operating speeds of vessels 
that struck various species of large whales ranged from 2 to 51 kn. The 
majority (79 percent) of these strikes occurred at speeds of 13 kn or 
greater. The average speed that resulted in serious injury or death was 
18.6 kn. Pace and Silber (2005) found that the probability of death or 
serious injury increased rapidly with increasing vessel speed. 
Specifically, the predicted probability of serious injury or death 
increased from 45 to 75 percent as vessel speed increased from 10 to 14 
kn, and exceeded 90 percent at 17 kn. Higher speeds during collisions 
result in greater force of impact and also appear to increase the 
chance of severe injuries or death. While modeling studies have 
suggested that hydrodynamic forces pulling whales toward the vessel 
hull increase with increasing speed (Clyne, 1999; Knowlton et al., 
1995), this is inconsistent with Silber et al. (2010), which 
demonstrated that there is no such relationship (i.e., hydrodynamic 
forces are independent of speed).
    In a separate study, Vanderlaan and Taggart (2007) analyzed the 
probability of lethal mortality of large whales at a given speed, 
showing that the greatest rate of change in the probability of a lethal 
injury to a large whale as a function of vessel speed occurs between 
8.6 and 15 kn. The chances of a lethal injury decline from 
approximately 80 percent at 15 kn to approximately 20 percent at 8.6 
kn. At speeds below 11.8 kn, the chances of lethal injury drop below 50 
percent, while the probability asymptotically increases toward 100 
percent above 15 kn.
    The Jensen and Silber (2003) report notes that the Large Whale Ship 
Strike Database represents a minimum number of collisions, because the 
vast majority probably goes undetected or unreported. In contrast, 
Ocean Wind's personnel are likely to detect any strike that does occur 
because of the required personnel training and lookouts, along with the 
inclusion of Protected Species Observers (as described in the Proposed 
Mitigation section), and they are required to report all ship strikes 
involving marine mammals.
    In the Ocean Wind project area, NMFS has no documented vessel 
strikes of marine mammals by Ocean Wind or Orsted during previous site 
characterization surveys. Given the extensive mitigation and monitoring 
measures (see the Proposed Mitigation and Proposed Monitoring and 
Reporting section) that would be required of Ocean Wind, NMFS believes 
that vessel strike is not likely to occur.

Marine Mammal Habitat

    Ocean Wind's proposed construction activities could potentially 
affect marine mammal habitat through the introduction of impacts to the 
prey species of marine mammals, acoustic habitat (sound in the water 
column), water quality, and important habitat for marine mammals.
    The presence of structures such as wind turbines are likely to 
result in both local and broader oceanographic effects. However, the 
scale of impacts is difficult to predict and may vary from hundreds of 
meters for local individual turbine impacts (Schultze et al., 2020) to 
large-scale dipoles of surface elevation changes stretching hundreds of 
kilometers (Christiansen et al., 2022).

Effects on Prey

    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, and zooplankton). Marine mammal prey varies by 
species, season, and location and, for some, is not well documented. 
Here, we describe studies regarding the effects of noise on known 
marine mammal prey.
    Fish utilize the soundscape and components of sound in their 
environment to perform important functions such as foraging, predator 
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009). 
The most likely effects on fishes exposed to loud, intermittent, low-
frequency sounds are behavioral responses (i.e., flight or avoidance). 
Short duration, sharp sounds (such as pile driving or air guns) can 
cause overt or subtle changes in fish behavior and local distribution. 
The reaction of fish to acoustic sources depends on the physiological 
state of the fish, past exposures, motivation (e.g., feeding, spawning, 
migration), and other environmental factors. Key impacts to fishes may 
include behavioral responses, hearing damage, barotrauma (pressure-
related injuries), and mortality. While it is clear that the behavioral 
responses of individual prey, such as displacement or other changes in 
distribution, can have direct impacts on the foraging success of marine 
mammals, the effects on marine mammals of individual prey that 
experience hearing damage, barotrauma, or mortality is less clear, 
though obviously population scale impacts that meaningfully reduce the 
amount of prey available could have more serious impacts.
    Fishes, like other vertebrates, have a variety of different sensory 
systems to glean information from ocean around them (Astrup and Mohl, 
1993; Astrup, 1999; Braun and Grande, 2008; Carroll et al., 2017; 
Hawkins and Johnstone, 1978; Ladich and Popper, 2004; Ladich and 
Schulz-Mirbach, 2016; Mann, 2016; Nedwell et al., 2004; Popper et al., 
2003; Popper et al., 2005). Depending on their hearing anatomy and 
peripheral sensory structures, which vary among species, fishes hear 
sounds using pressure and particle motion sensitivity capabilities and 
detect the motion of surrounding water (Fay et al., 2008) (terrestrial 
vertebrates generally only detect pressure). Most marine fishes 
primarily detect particle motion using the inner ear and lateral line 
system, while some fishes possess additional morphological adaptations 
or specializations that can enhance their sensitivity to sound 
pressure, such as a gas-filled swim bladder (Braun and Grande, 2008; 
Popper and Fay, 2011).
    Hearing capabilities vary considerably between different fish 
species with data only available for just over 100 species out of the 
34,000 marine and freshwater fish species (Eschmeyer and Fong, 2016). 
In order to better understand acoustic impacts on fishes, fish hearing 
groups are defined by species that possess a similar continuum of 
anatomical features which result in varying degrees of hearing 
sensitivity (Popper and Hastings, 2009a). There are four hearing groups 
defined for all fish species (modified from Popper et al., 2014) within 
this analysis and they include: Fishes without a swim bladder (e.g., 
flatfish, sharks, rays, etc.); fishes with a swim bladder not involved 
in

[[Page 64905]]

hearing (e.g., salmon, cod, pollock, etc.); fishes with a swim bladder 
involved in hearing (e.g., sardines, anchovy, herring, etc.); and 
fishes with a swim bladder involved in hearing and high-frequency 
hearing (e.g., shad and menhaden). Most marine mammal fish prey species 
would not be likely to perceive or hear mid- or high-frequency sonars. 
While hearing studies have not been done on sardines and northern 
anchovies, it would not be unexpected for them to have hearing 
similarities to Pacific herring (up to 2-5 kHz) (Mann et al., 2005). 
Currently, less data are available to estimate the range of best 
sensitivity for fishes without a swim bladder.
    In terms of physiology, multiple scientific studies have documented 
a lack of mortality or physiological effects to fish from exposure to 
low- and mid-frequency sonar and other sounds (Halvorsen et al., 2012; 
J[oslash]rgensen et al., 2005; Juanes et al., 2017; Kane et al., 2010; 
Kvadsheim and Sevaldsen, 2005; Popper et al., 2007; Popper et al., 
2016; Watwood et al., 2016). Techer et al. (2017) exposed carp in 
floating cages for up to 30 days to low-power 23 and 46 kHz source 
without any significant physiological response. Other studies have 
documented either a lack of TTS in species whose hearing range cannot 
perceive sonar (such as Navy sonar), or for those species that could 
perceive sonar-like signals, any TTS experienced would be recoverable 
(Halvorsen et al., 2012; Ladich and Fay, 2013; Popper and Hastings, 
2009a, 2009b; Popper et al., 2014; Smith, 2016). Only fishes that have 
specializations that enable them to hear sounds above about 2,500 Hz 
(2.5 kHz) such as herring (Halvorsen et al., 2012; Mann et al., 2005; 
Mann, 2016; Popper et al., 2014) would have the potential to receive 
TTS or exhibit behavioral responses from exposure to mid-frequency 
sonar. In addition, any sonar induced TTS to fish whose hearing range 
could perceive sonar would only occur in the narrow spectrum of the 
source (e.g., 3.5 kHz) compared to the fish's total hearing range 
(e.g., 0.01 kHz to 5 kHz).
    In terms of behavioral responses, Juanes et al. (2017) discuss the 
potential for negative impacts from anthropogenic noise on fish, but 
the author's focus was on broader based sounds, such as ship and boat 
noise sources. Watwood et al. (2016) also documented no behavioral 
responses by reef fish after exposure to mid-frequency active sonar. 
Doksaeter et al. (2009; 2012) reported no behavioral responses to mid-
frequency sonar (such as naval sonar) by Atlantic herring; 
specifically, no escape reactions (vertically or horizontally) were 
observed in free swimming herring exposed to mid-frequency sonar 
transmissions. Based on these results (Doksaeter et al., 2009; 
Doksaeter et al., 2012; Sivle et al., 2012), Sivle et al. (2014) 
created a model in order to report on the possible population-level 
effects on Atlantic herring from active sonar. The authors concluded 
that the use of sonar poses little risk to populations of herring 
regardless of season, even when the herring populations are aggregated 
and directly exposed to sonar. Finally, Bruintjes et al. (2016) 
commented that fish exposed to any short-term noise within their 
hearing range might initially startle, but would quickly return to 
normal behavior.
    Occasional behavioral reactions to activities that produce 
underwater noise sources are unlikely to cause long-term consequences 
for individual fish or populations. The most likely impact to fish from 
impact and vibratory pile driving activities at the project areas would 
be temporary behavioral avoidance of the area. Any behavioral avoidance 
by fish of the disturbed area would still leave significantly large 
areas of fish and marine mammal foraging habitat in the nearby 
vicinity. The duration of fish avoidance of an area after pile driving 
stops is unknown, but a rapid return to normal recruitment, 
distribution and behavior is anticipated. In general, impacts to marine 
mammal prey species are expected to be minor and temporary due to the 
expected short daily duration of individual pile driving events and the 
relatively small areas being affected.
    SPLs of sufficient strength have been known to cause injury to fish 
and fish mortality. However, in most fish species, hair cells in the 
ear continuously regenerate and loss of auditory function likely is 
restored when damaged cells are replaced with new cells. Halvorsen et 
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours 
for one species. Impacts would be most severe when the individual fish 
is close to the source and when the duration of exposure is long. 
Injury caused by barotrauma can range from slight to severe and can 
cause death, and is most likely for fish with swim bladders. Barotrauma 
injuries have been documented during controlled exposure to impact pile 
driving (Halvorsen et al., 2012b; Casper et al., 2013). As described in 
the Proposed Mitigation section below, Ocean Wind would utilize a sound 
attenuation device which would reduce potential for injury to marine 
mammal prey. Other fish that experience hearing loss as a result of 
exposure to explosions and impulsive sound sources may have a reduced 
ability to detect relevant sounds such as predators, prey, or social 
vocalizations. However, PTS has not been known to occur in fishes and 
any hearing loss in fish may be as temporary as the timeframe required 
to repair or replace the sensory cells that were damaged or destroyed 
(Popper et al., 2005; Popper et al., 2014; Smith et al., 2006). It is 
not known if damage to auditory nerve fibers could occur, and if so, 
whether fibers would recover during this process.
    It is also possible for fish to be injured or killed by an 
explosion from UXO/MEC detonation. Physical effects from pressure waves 
generated by underwater sounds (e.g., underwater explosions) could 
potentially affect fish within proximity of training or testing 
activities. The shock wave from an underwater explosion is lethal to 
fish at close range, causing massive organ and tissue damage and 
internal bleeding (Keevin and Hempen, 1997). At greater distance from 
the detonation point, the extent of mortality or injury depends on a 
number of factors including fish size, body shape, orientation, and 
species (Keevin and Hempen, 1997; Wright, 1982). At the same distance 
from the source, larger fish are generally less susceptible to death or 
injury, elongated forms that are round in cross-section are less at 
risk than deep-bodied forms, and fish oriented sideways to the blast 
suffer the greatest impact (Edds-Walton and Finneran, 2006; O'Keeffe, 
1984; O'Keeffe and Young, 1984; Wiley et al., 1981; Yelverton et al., 
1975). Species with gas-filled organs are more susceptible to injury 
and mortality than those without them (Gaspin, 1975; Gaspin et al., 
1976; Goertner et al., 1994). Barotrauma injuries have been documented 
during controlled exposure to impact pile driving (an impulsive noise 
source, as are explosives and air guns) (Halvorsen et al., 2012b; 
Casper et al., 2013).
    Fish not killed or driven from a location by an explosion might 
change their behavior, feeding pattern, or distribution. Changes in 
behavior of fish have been observed as a result of sound produced by 
explosives, with effect intensified in areas of hard substrate (Wright, 
1982). Stunning from pressure waves could also temporarily immobilize 
fish, making them more susceptible to predation. The abundances of 
various fish (and invertebrates) near the detonation point for 
explosives could be altered for a few hours before animals from 
surrounding areas repopulate the area. However, these populations would 
likely be replenished as waters near the detonation point are mixed 
with

[[Page 64906]]

adjacent waters. Repeated exposure of individual fish to sounds from 
underwater explosions is not likely and are expected to be short-term 
and localized. Long-term consequences for fish populations would not be 
expected. Several studies have demonstrated that air gun sounds might 
affect the distribution and behavior of some fishes, potentially 
impacting foraging opportunities or increasing energetic costs (e.g., 
Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al., 
1992; Santulli et al., 1999; Paxton et al., 2017).
    UXO/MEC detonations would be dispersed in space and time; 
therefore, repeated exposure of individual fishes are unlikely. 
Mortality and injury effects to fishes from explosives would be 
localized around the area of a given in-water explosion, but only if 
individual fish and the explosive (and immediate pressure field) were 
co-located at the same time. Fishes deeper in the water column or on 
the bottom would not be affected by water surface explosions. Repeated 
exposure of individual fish to sound and energy from underwater 
explosions is not likely given fish movement patterns, especially 
schooling prey species. Most acoustic effects, if any, are expected to 
be short-term and localized. Long-term consequences for fish 
populations including key prey species within the project area would 
not be expected.
    Furthermore, required soft-starts would allow prey and marine 
mammals to move away from the source prior to any noise levels that may 
physically injure prey and the use of the noise attenuation devices 
would reduce noise levels to the degree any mortality or injury of prey 
is also minimized. Use of bubble curtains, in addition to reducing 
impacts to marine mammals, for example, is a key mitigation measure in 
reducing injury and mortality of 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 to pile driving by marine mammal 
prey are expected to be brief. 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 impact pile driving and during any UXO/MEC detonations and, 
if prey were to move out the area in response to noise, these impacts 
would be minimized.
    In addition to fish, prey sources such as marine invertebrates 
could potentially be impacted by noise stressors as a result of the 
proposed activities. However, most marine invertebrates' ability to 
sense sounds is limited. Invertebrates appear to be able to detect 
sounds (Pumphrey, 1950; Frings and Frings, 1967) and are most sensitive 
to low-frequency sounds (Packard et al., 1990; Budelmann and 
Williamson, 1994; Lovell et al., 2005; Mooney et al., 2010). Data on 
response of invertebrates such as squid, another marine mammal prey 
species, to anthropogenic sound are more limited (de Soto, 2016; Sole 
et al., 2017b). Data suggest that cephalopods are capable of sensing 
the particle motion of sounds and detect low frequencies up to 1-1.5 
kHz, depending on the species, and so are likely to detect air gun 
noise (Kaifu et al., 2008; Hu et al., 2009; Mooney et al., 2010; Samson 
et al., 2014). Sole et al. (2017b) reported physiological injuries to 
cuttlefish in cages placed at-sea when exposed during a controlled 
exposure experiment to low-frequency sources (315 Hz, 139 to 142 dB re 
1 [mu]Pa\2\ and 400 Hz, 139 to 141 dB re 1 [mu]Pa\2\). Fewtrell and 
McCauley (2012) reported squids maintained in cages displayed startle 
responses and behavioral changes when exposed to seismic air gun sonar 
(136-162 re 1 [mu]Pa\2\[middot]s). Jones et al. (2020) found that when 
squid (Doryteuthis pealeii) were exposed to impulse pile driving noise, 
body pattern changes, inking, jetting, and startle responses were 
observed and nearly all squid exhibited at least one response. However, 
these responses occurred primarily during the first eight impulses and 
diminished quickly, indicating potential rapid, short-term habituation. 
Cephalopods have a specialized sensory organ inside the head called a 
statocyst that may help an animal determine its position in space 
(orientation) and maintain balance (Budelmann, 1992). Packard et al. 
(1990) showed that cephalopods were sensitive to particle motion, not 
sound pressure, and Mooney et al. (2010) demonstrated that squid 
statocysts act as an accelerometer through which particle motion of the 
sound field can be detected. Auditory injuries (lesions occurring on 
the statocyst sensory hair cells) have been reported upon controlled 
exposure to low-frequency sounds, suggesting that cephalopods are 
particularly sensitive to low-frequency sound (Andre et al., 2011; Sole 
et al., 2013). Behavioral responses, such as inking and jetting, have 
also been reported upon exposure to low-frequency sound (McCauley et 
al., 2000b; Samson et al., 2014). Squids, like most fish species, are 
likely more sensitive to low frequency sounds, and may not perceive 
mid- and high-frequency sonars. Cumulatively for squid as a prey 
species, individual and population impacts from exposure to explosives, 
like fish, are not likely to be significant, and explosive impacts 
would be short-term and localized.
    Explosions could kill or injure nearby marine invertebrates. 
Vessels also have the potential to impact marine invertebrates by 
disturbing the water column or sediments, or directly striking 
organisms (Bishop, 2008). The propeller wash (water displaced by 
propellers used for propulsion) from vessel movement and water 
displaced from vessel hulls can potentially disturb marine 
invertebrates in the water column and is a likely cause of zooplankton 
mortality (Bickel et al., 2011). The localized and short-term exposure 
to explosions or vessels could displace, injure, or kill zooplankton, 
invertebrate eggs or larvae, and macro-invertebrates. However, 
mortality or long-term consequences for a few animals is unlikely to 
have measurable effects on overall populations.
    Impacts to benthic communities from impulsive sound generated by 
active acoustic sound sources are not well documented. (e.g., 
Andriguetto-Filho et al., 2005; Payne et al., 2007; 2008; Boudreau et 
al., 2009). There are no published data that indicate whether temporary 
or permanent threshold shifts, auditory masking, or behavioral effects 
occur in benthic invertebrates (Hawkins et al., 2014) and some studies 
showed no short-term or long-term effects of air gun exposure (e.g., 
Andriguetto-Filho et al., 2005; Payne et al., 2007; 2008; Boudreau et 
al., 2009). Exposure to air gun signals was found to significantly 
increase mortality in scallops, in addition to causing significant 
changes in behavioral patterns during exposure (Day et al., 2017). 
However, the authors state that the observed levels of mortality were 
not beyond naturally occurring rates. Explosions and pile driving could 
potentially kill or injure nearby marine invertebrates; however, 
mortality or long-term consequences for a few animals is unlikely to 
have measurable effects on overall populations.
    The presence of large numbers of turbines has been shown to impact 
meso and sub-meso-scale water column circulation, which can affect the 
density, distribution, and energy content of zooplankton, and thereby 
their availability as marine mammal prey. Ocean Wind intends to have up 
to 68 operational by 2024, with the other 30 WTG installed and 
operational by

[[Page 64907]]

either late 2024 or 2025. As described above, there is scientific 
uncertainty around the scale of impacts (meters to kilometers). Ocean 
Wind 1 is located in an area of the Mid-Atlantic Bight that experiences 
coastal upwelling, a consequence of the predominant wind direction and 
the orientation of the coastline. Along the coast of New Jersey, 
upwelling of deeper, nutrient-rich waters frequently leads to late 
summer blooms of phytoplankton and subsequently increased biological 
productivity (Gong et al., 2010; Glenn et al., 2004). However, the 
project area does not include key foraging grounds for marine mammals 
with planktonic diets (e.g., North Atlantic right whale). Ocean Wind 1 
is also located on the inshore edge of the Cold Pool. While there may 
be localized oceanographic impacts from operation, the footprint of 
those impacts relative to the scale of the Cold Pool itself. Overall, 
any impact to plankton aggregation, and hence availability as marine 
mammal prey, from turbine presence and operation during the effective 
period of the proposed rule is likely to be very limited.
    Overall, the combined impacts of sound exposure, explosions, and 
oceanographic impacts on marine mammal habitat resulting from the 
proposed activities would not be expected to have measurable effects on 
populations of marine mammal prey species. Prey species exposed to 
sound might move away from the sound source, experience TTS, experience 
masking of biologically relevant sounds, or show no obvious direct 
effects.
Acoustic Habitat
    Acoustic habitat is the soundscape, which encompasses all of the 
sound present in a particular location and time, as a whole when 
considered from the perspective of the animals experiencing it. Animals 
produce sound for, or listen for sounds produced by, conspecifics 
(communication during feeding, mating, and other social activities), 
other animals (finding prey or avoiding predators), and the physical 
environment (finding suitable habitats, navigating). Together, sounds 
made by animals and the geophysical environment (e.g., produced by 
earthquakes, lightning, wind, rain, waves) make up the natural 
contributions to the total acoustics of a place. These acoustic 
conditions, termed acoustic habitat, are one attribute of an animal's 
total habitat.
    Soundscapes are also defined by, and acoustic habitat influenced 
by, the total contribution of anthropogenic sound. This may include 
incidental emissions from sources such as vessel traffic or may be 
intentionally introduced to the marine environment for data acquisition 
purposes (as in the use of air gun arrays) or for Navy training and 
testing purposes (as in the use of sonar and explosives and other 
acoustic sources). Anthropogenic noise varies widely in its frequency, 
content, duration, and loudness and these characteristics greatly 
influence the potential habitat-mediated effects to marine mammals 
(please also see the previous discussion on Masking), which may range 
from local effects for brief periods of time to chronic effects over 
large areas and for long durations. Depending on the extent of effects 
to habitat, animals may alter their communications signals (thereby 
potentially expending additional energy) or miss acoustic cues (either 
conspecific or adventitious). Problems arising from a failure to detect 
cues are more likely to occur when noise stimuli are chronic and 
overlap with biologically relevant cues used for communication, 
orientation, and predator/prey detection (Francis and Barber, 2013). 
For more detail on these concepts see, e.g., Barber et al., 2009; 
Pijanowski et al., 2011; Francis and Barber, 2013; Lillis et al., 2014.
    The term ``listening area'' refers to the region of ocean over 
which sources of sound can be detected by an animal at the center of 
the space. Loss of communication space concerns the area over which a 
specific animal signal, used to communicate with conspecifics in 
biologically important contexts (e.g., foraging, mating), can be heard, 
in noisier relative to quieter conditions (Clark et al., 2009). Lost 
listening area concerns the more generalized contraction of the range 
over which animals would be able to detect a variety of signals of 
biological importance, including eavesdropping on predators and prey 
(Barber et al., 2009). Such metrics do not, in and of themselves, 
document fitness consequences for the marine animals that live in 
chronically noisy environments. Long-term population-level consequences 
mediated through changes in the ultimate survival and reproductive 
success of individuals are difficult to study, and particularly so 
underwater. However, it is increasingly well documented that aquatic 
species rely on qualities of natural acoustic habitats, with 
researchers quantifying reduced detection of important ecological cues 
(e.g., Francis and Barber, 2013; Slabbekoorn et al., 2010) as well as 
survivorship consequences in several species (e.g., Simpson et al., 
2014; Nedelec et al., 2015).
    Sound produced from construction activities in the Ocean Wind 1 
project area is temporary and transitory. The sounds produced during 
construction activities may be widely dispersed or concentrated in 
small areas for varying periods. Any anthropogenic noise attributed to 
construction activities in the project area would be temporary and the 
affected area would be expected to immediately return to the original 
state when these activities cease.
Water Quality
    Indirect effects of explosives and unexploded ordnance to marine 
mammals via sediment is possible in the immediate vicinity of the 
ordnance. Degradation products of Royal Demolition Explosive are not 
toxic to marine organisms at realistic exposure levels (Rosen and 
Lotufo, 2010). Relatively low solubility of most explosives and their 
degradation products means that concentrations of these contaminants in 
the marine environment are relatively low and readily diluted. 
Furthermore, while explosives and their degradation products were 
detectable in marine sediment approximately 6-12 in (0.15-0.3 m) away 
from degrading ordnance, the concentrations of these compounds were not 
statistically distinguishable from background beyond 3-6 ft (1-2 m) 
from the degrading ordnance. Taken together, it is possible that marine 
mammals could be exposed to degrading explosives, but it would be 
within a very small radius of the explosive (1-6 ft (0.3-2 m)).
    Equipment used by Ocean Wind within the project area, including 
ships and other marine vessels, potentially aircrafts, and other 
equipment, are also potential sources of by-products. All equipment is 
properly maintained in accordance with applicable legal requirements. 
All such operating equipment meets Federal water quality standards, 
where applicable.

Preliminary Conclusion

    The most likely impact to marine mammal habitat from the project is 
expected to be from impact and vibratory pile driving and UXO/MEC 
detonations, which may affect marine mammal food sources such as forage 
fish and could also affect acoustic habitat (see the Auditory Masking 
section) effects on marine mammal prey (e.g., fish).
    The most likely impact to fish from impact and vibratory pile 
driving activities at the project areas would be temporary behavioral 
avoidance of the area. The duration of fish avoidance of an area after 
pile driving stops is

[[Page 64908]]

unknown, but a rapid return to normal recruitment, distribution and 
behavior is anticipated. In general, impacts to marine mammal prey 
species are expected to be relatively minor and temporary due to the 
expected short daily duration of individual pile driving events and the 
relatively small areas being affected. The most likely impacts of prey 
fish from UXO/MEC detonations, if determined to be necessary, are 
injury or mortality if they are located within the vicinity when 
detonation occurs. However, given the likely spread of any UXOs/MECs in 
the project area, the low chance of detonation (as lift-and-shift and 
deflagration are the primary removal approaches), and that this area is 
not a biologically important foraging ground, overall effects should be 
minimal to marine mammal species. NMFS does not expect HRG acoustic 
sources to impact fish and most sources are likely outside the hearing 
range of the primary prey species in the project area. As described 
previously, the placement and operation of wind turbines can also 
impact hydrographic patterns, though these impacts assessed through 
this rule are expected to be minimal given the small number of turbines 
that will be operational and the short amount of time covered under the 
rule.
    These potential impacts on prey could impact the distribution of 
marine mammals within the project area, potentially necessitating 
additional energy expenditure to find and capture prey, but at the 
temporal and spatial scales anticipated for this activity are not 
expected to impact the reproduction or survival of any individual 
marine mammals. Although studies assessing the impacts of offshore wind 
development on marine mammals are limited, the repopulation of wind 
energy areas by harbor porpoises (Brandt et al., 2016; Lindeboom et 
al., 2011) and harbor seals (Lindeboom et al., 2011; Russell et al., 
2016) following the installation of wind turbines are promising.
    Impacts to the immediate substrate during installation of piles are 
anticipated, but these would be limited to minor, temporary suspension 
of sediments, which could impact water quality and visibility for a 
short amount of time, but which would not be expected to have any 
effects on individual marine mammals.
    Ocean Wind 1 would be located within the migratory corridor BIA for 
North Atlantic right whales; however, the 68,450 acre (277 km\2\) lease 
area occupies a fraction of the available habitat for North Atlantic 
right whales migrating through the region (66,591,935 acres; 269,488 
km\2\). There are no known foraging hotspots, or other ocean bottom 
structures of significant biological importance to marine mammals 
present in the project area.
    Based on the information discussed herein, NMFS concludes that any 
impacts to marine mammal habitat are not expected to result in 
significant or long-term consequences for individual marine mammals, or 
to contribute to adverse impacts on their populations.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this rulemaking, which will inform 
both NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Authorized takes would primarily be by Level B harassment, as use 
of the acoustic sources (i.e., impact and vibratory pile driving, site 
characterization surveys, and UXO/MEC detonations) have the potential 
to result in disruption of marine mammal behavioral patterns due to 
exposure to elevated noise levels. Impacts such as masking and TTS can 
contribute to behavioral disturbances. There is also some potential for 
auditory injury (Level A harassment) to occur in select marine mammal 
species incidental to the specified activities (i.e., impact pile 
driving and UXO/MEC detonations). For this action, this potential is 
limited to mysticetes, high frequency cetaceans, and phocids due to 
their hearing sensitivities and the nature of the activities. As 
described below, the larger distances to the PTS thresholds, when 
considering marine mammal weighting functions, demonstrate this 
potential. For mid-frequency hearing sensitivities, when thresholds and 
weighting and the associated PTS zone sizes are considered, the 
potential for PTS from the noise produced by the project is negligible. 
The proposed mitigation and monitoring measures are expected to 
minimize the severity of the taking to the extent practicable.
    As described previously, no serious injury or mortality is 
anticipated or proposed to be 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 proposed take 
estimate.

Marine Mammal Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment). Thresholds have also been developed to identify the levels 
above which animals may incur different types of tissue damage (non-
acoustic Level A harassment or mortality) from exposure to pressure 
waves from explosive detonation. Thresholds have also been developed 
identifying the received level of in-air sound above which exposed 
pinnipeds would likely be behaviorally harassed. A summary of all NMFS' 
thresholds can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance).
    Level B harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., other noises in the area) and the 
receiving animals (hearing, motivation, experience, demography, life 
stage, depth) and can be difficult to predict (e.g., Southall et al., 
2007, 2021; Ellison et al., 2012). Based on what the available science 
indicates and the practical need to use a threshold based on a metric 
that is both predictable and measurable for most activities, NMFS 
typically uses a generalized acoustic threshold based on received level 
to estimate the onset of behavioral harassment. NMFS generally predicts 
that marine mammals are likely to be behaviorally harassed in a manner 
considered to be Level B harassment when exposed to underwater 
anthropogenic noise above root-mean-squared pressure received levels 
(RMS SPL) of 120 dB (referenced to 1

[[Page 64909]]

micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile 
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources (Table 5). Generally speaking, Level B 
harassment take estimates based on these behavioral harassment 
thresholds are expected to include any likely takes by TTS as, in most 
cases, the likelihood of TTS occurs at distances from the source less 
than those at which behavioral harassment is likely. TTS of a 
sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (conspecific communication, predators, prey) may 
result in changes in behavior patterns that would not otherwise occur.
    Ocean Wind's construction activities include the use of continuous 
(e.g., vibratory pile driving), intermittent (e.g., impact pile 
driving, HRG acoustic sources), and impulsive (e.g., UXO/MEC 
detonations) sources, and, therefore, the 120 and 160 dB re 1 mPa (rms) 
thresholds are applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). As dual 
metrics, NMFS considers onset of PTS (Level A harassment) to have 
occurred when either one of the two metrics is exceeded (i.e., metric 
resulting in the largest isopleth). Ocean Wind's proposed activity 
includes the use of impulsive and non-impulsive sources.
    These thresholds are provided in Table 5 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
BILLING CODE 3510-22-P

[[Page 64910]]

[GRAPHIC] [TIFF OMITTED] TP26OC22.023

    Explosive sources--Based on the best available science, NMFS uses 
the acoustic and pressure thresholds indicated in Tables 6 and 7 to 
predict the onset of behavioral harassment, TTS, PTS, tissue damage, 
and mortality from explosive detonations.

[[Page 64911]]

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    Additional thresholds for the onset of non-auditory injury to lung 
and gastrointestinal organs from the blast shock wave and/or high peak 
pressures are also relevant (at relatively close ranges) (Table 7). 
These criteria have been developed by the U.S. Navy (DoN (U.S. 
Department of the Navy), 2017a) and are based on the mass of the animal 
(e.g., lowest to highest range for each hearing group) and the depth at 
which it is present in the water column. Equations predicting the onset 
of the associated potential effects are included below (Table 7).

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BILLING CODE 3510-22-C
    Below, we discuss the acoustic modeling, marine mammal density 
information, and take estimation for each of Ocean Wind's proposed 
construction activities. NMFS has carefully considered all information 
and analysis presented by the applicant as well as all other applicable 
information and, based on the best available science, concurs that the 
applicant's estimates of the types and amounts of take for each species 
and stock are complete and accurate.

Marine Mammal Densities

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory and the Marine-life Data and Analysis 
Team, based on the best available marine mammal data from 1992-2022 
obtained in a collaboration between Duke University, the Northeast 
Regional Planning Body, the University of North Carolina Wilmington, 
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et 
al., 2016a, 2016b, 2017, 2018, 2020, 2021a, 2021b; Roberts and Halpin, 
2022), represent the best available information regarding marine mammal 
densities in the survey area. More recently, these data have been 
updated with new modeling results and include density estimates for 
pinnipeds (Roberts et al., 2016b, 2017, 2018; Roberts and Halpin, 
2022). Density data are subdivided into five separate raster data 
layers for each species, including: Abundance (density), 95 percent-
Confidence Interval of Abundance, 5 percent Confidence Interval of 
Abundance, Standard Error of Abundance, and Coefficient of Variation of 
Abundance.
    Ocean Wind's initial densities and take estimates were included in 
the ITA application that was considered Adequate & Complete on February 
11, 2022, in line with NMFS' standard ITA guidance (https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-take-authorization). However, on June 20, 2022, the Duke 
Marine Geospatial Ecology Laboratory released a new, and more 
comprehensive, set of marine mammal density models for the area along 
the East Coast of the United States (Roberts and Halpin, 2022). The 
differences between the new density data and the older data 
necessitated the use of updated marine mammal densities and, 
subsequently, revised marine mammal take estimates. This information 
was provided to NMFS as a memo (referred to as the Revised Density and 
Take Estimate Memo) on August 29, 2022 after continued discussion 
between Ocean Wind and NMFS and NMFS has considered it in this 
analysis. The Revised Density and Take Estimate Memo was made public on 
NMFS' website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility).
    The densities used to estimate take from foundation installation, 
were calculated based on average monthly densities for all grid cells 
within the lease area as well as grid cells extending an additional 5 
km (3.11 mi) beyond the lease area, referred to as a 5 km perimeter 
(refer to Figure 1 of the Revised Density and Take Estimate Memo 
provided by Orsted and found on NMFS' website). The take estimates 
assumed that up to 60 WTG monopiles would be installed in the highest 
density month for each marine mammal species (2 monopiles per day 
maximum x 30 days) with the remaining 38 WTG monopiles being installed 
in the second highest density month (2 monopiles per day maximum x 19 
days). This estimation approach is conservative as it is unlikely that 
all piles will be installed within 2 months; however, given the 
uncertainty with the exact pile schedule, this approach allows for the 
worst-case scenario to be analyzed and provides certainty that the 
maximum of

[[Page 64913]]

take has been analyzed. Although Ocean Wind is not sure which 
foundation type would be used for the OSSs (monopiles or jackets), the 
highest month density was used for the exposure modeling of pin piles 
using jacket foundations as this resulted in the highest number of 
takes as was considered reasonable that all 48 pin piles could be 
installed in a single month (3 pin piles per day x 16 days).
    For cofferdam density estimates, a 10 km (6.21 mi) perimeter was 
applied around each of the cofferdam locations (Figure 2 of the Revised 
Density and Take Estimate Memo), with densities averaged among the 
seven cofferdam locations to result in one density table for all 
cofferdams. Due to the uncertainty of the specific months that 
temporary cofferdams would be installed and removed via vibratory pile 
driving, Ocean Wind used the average density for the months of October 
through May, as described in the Revised Density and Take Estimate 
Memo. We note that in the application Ocean Wind assumed all the work 
would occur in the month when a species density was the highest (e.g., 
Ocean Wind has assumed all cofferdam would occur in December for 
humpback whales but in April for sei whales; Table 6-2 in the ITA 
application). This original approach was deemed too conservative and 
the revised approach, as described in the aforementioned Memo, avoids 
the unnecessary overestimation of marine mammal takes. While it is 
possible for seven 4-day installation/removal events to occur within 
the same month, there is no specific expectation that the installations 
will occur immediately one after another across the different locations 
and, therefore, this approach is appropriate.
    To estimate densities for the HRG surveys occurring both within the 
lease area and within the export cable routes, a 5 km (3.11 mi) 
perimeter was applied around the cable corridors (Figure 3 of the 
Revised Density and Take Estimate Memo). Given this work could occur 
year-round, the average annual density for each species was calculated 
using average monthly densities from January through December. The 
revised density estimates for HRG surveys were calculated for both the 
export cable route area and the lease area in the Revised Density and 
Take Estimate Memo in a way that aligned with the proposed schedule for 
HRG activities (88 survey days in Years 1, 4, and 4; 180 survey days in 
Years 2 and 3), as opposed to averaging the each species annual density 
across the entire project area was presented in the ITA application. 
Furthermore, while the original ITA application included the entire HRG 
area (Lease Area and export cable routes) collectively, the Memo has 
separated these two locations with more specific densities for the 
export cable route and Lease Area. These changes better account for the 
activity footprint and perimeter (5 km) to more accurately represent 
the spatial extent and resolution of the survey effort planned.
    For UXO/MEC detonations, given that UXOs/MECs have the potential to 
occur anywhere within the project area, a 15 km (9.32 mi) perimeter was 
applied to both the lease area and the export cable corridors (Figure 4 
of the Revised Density and Take Estimate Memo). In cases where monthly 
densities were unavailable, annual densities were used instead (i.e., 
blue whales, pilot whale spp., Atlantic spotted dolphins).
    NMFS notes several exceptions to the determination of the relevant 
densities for some marine mammal species to the method described above. 
These are described here in greater detail.
    For several marine mammal species, the Roberts data does not 
differentiate by stock. This is true for the bottlenose dolphins, for 
which two stocks were requested to be taken by Ocean Wind (coastal 
migratory and offshore stock). This is also true for long-finned and 
short-finned pilot whales (pilot whales spp.) and harbor and gray seals 
(seals), where a pooled density is the only value available from the 
data that is not partitioned by stock. To account for this, the coastal 
migratory and offshore stocks of bottlenose dolphins were adjusted 
based on the 20-m isobath cutoff, such that take predicted to occur in 
any area less than 20-m in depth was apportioned to the coastal stock 
only and take predicted to occur in waters of greater than 20 m of 
depth was apportioned to the offshore stock. The densities for the 
pilot whales were apportioned based on their relative abundance in the 
project area to estimate species- and stock-specific exposures. The 
same approach was taken for the two pinniped species (harbor and gray 
seals), where each species was scaled based on its relative abundance 
in the project area, as opposed the application of the same density to 
both, as previously described in the ITA application. Table 8, 9, 10, 
and 11 below demonstrate all of the densities used in the exposure and 
take analyses.
BILLING CODE 3510-22-P
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Modeling and Take Estimation

    Below, we describe the three methods that were used to estimate 
take in consideration of the acoustic thresholds and marine mammal 
densities described above and the four different activities (WTG and 
OSS foundation installation, temporary cofferdam installation/removal, 
UXO/MEC detonation, and HRG surveys). The take estimates for the four 
different activities, as well as the combined total, are presented.
WTG and OSS Foundation Installation (Impact Pile Driving) Take 
Estimates
    As described above, Ocean Wind has proposed to install up to 98 
WTGs and 3 OSS in the project area. Ocean Wind has proposed two piling 
scenarios that may be encountered during the construction of the OSSs 
and were therefore considered in the acoustic modeling conducted to 
estimate the potential number of marine mammal exposures above relevant 
harassment thresholds: (1) all monopile build-out for WTGs and OSS (101 
monopiles total), and (2) a joint-monopile WTG

[[Page 64918]]

and OSS jacket foundation build-out (98 monopiles and 48 pin piles 
total). Full installation parameters for each of the monopile and 
jacket foundations are described below:
    (1) Monopile foundation (for either WTG only or WTG and OSS) with 
either 98 (assuming OSSs are built-out using jacket foundations) or 101 
8/11 m diameter tapered piles (assuming both WTG and OSS are using 
monopile foundations; one monopile per WTG/OSS); and/or,
    (2) Jacket foundations (for OSS only) with up to 48 2.44 m diameter 
pin piles total (16 per OSS).
    In recognition of the need to ensure that the range of potential 
impacts to marine mammals from the various potential scenarios are 
accounted for, both piling scenarios (WTG using monopiles; OSS using 
monopiles or jacket foundations with pin piles) were modeled separately 
in order to assess the impacts of each. The two impact pile driving 
installation scenarios modeled are:
    (1) Full monopile foundation scenario (see Table 1-7 in the Ocean 
Wind 1 ITA application): A total of 10,846 hammer strikes are needed 
per pile over 4 hours (392 total hours needed for 98 WTGs or 404 total 
hours needed for 101 WTGS and OSS foundations (12 hours total specific 
to OSS installation)); and,
    (2) A joint-monopile and jacket foundation scenario (see Table 1-15 
in the Ocean Wind 1 ITA application): A total of 13,191 hammer strikes 
are needed per pile over 4 hours (192 hours are necessary to complete 
the installation of all pin piles).
    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 (Table 12).
[GRAPHIC] [TIFF OMITTED] TP26OC22.031

BILLING CODE 3510-22-C
    Both monopiles and pin piles were assumed to be vertically aligned 
and driven to a maximum depth of 50 m for monopiles and 70 m for pin 
piles. While pile penetration depths may vary slightly, these values 
were chosen as reasonable penetration depths during modeling. All 
acoustic modeling was performed assuming that concurrent pile driving 
of either monopiles or pin piles would not occur. While multiple piles 
may be driven within any single 24-hour period, these installation 
activities would not occur simultaneously. Below we describe the 
assumptions inherent to the modeling approach and those by which Ocean 
Wind 1 would not exceed:
    Modeling assumptions for the project are as follows:

[[Page 64919]]

     Two monopiles installed per day (4 hours per monopile with 
a 1 hour pre-clearance period; 9 hours of total with 8 hours of active 
pile driving time), although only one monopile may be installed on some 
days;
     No concurrent monopile and/or pin pile driving would 
occur;
     Monopiles would be 80 millimeters (mm) thick and consist 
of steel;
     Impact Pile driving: IHC S-4000 or IHC S-2500 kJ rated 
energy; 1,977.151 kilonewton (kN) ram weight);
     Helmet weight: 3,776.9 kN;
     Impact hammers would have a maximum power capacity of 
6,000 kilowatts (KW);
     Up to three pin piles installed per day;
     Pin piles would be 75 mm thick;
     Impact Pile driving: IHC S-2,500 kJ rated energy; 1,227.32 
kN ram weight);
     Helmet weight: 279 kN.
    Sound fields produced during impact 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). We provide a summary of the modelling effort below but 
the full JASCO modeling report can be found in Section 6 and Appendix A 
of Ocean Wind's ITA application (https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility).
    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 geo-acoustic 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 sub-bottom 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 the full-wave range-
dependent acoustic model (FWRAM), which is JASCO's acoustic propagation 
model capable of producing time-domain waveforms.
    Models are more efficient at estimating SEL than SPLrms. 
Therefore, conversions may be necessary to derive the corresponding 
SPLrms. Propagation was modeled for a subset of sites using 
the 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 
SPLrms from the broadband SEL prediction.
    The sound fields for the monopile and pin pile scenarios were each 
modeled based on one representative location in the project area. For 
monopiles this area is G10 and for jacket foundations with pin piles 
this area is Z11 (see in Appendix A of the ITA application). Both 
modeling locations were selected as they were determined to be the most 
representative of the water depths in the Ocean Wind 1 project area, as 
appropriate for each foundation type (i.e., monopiles in shallower 
waters and jackets in deeper waters). All monopiles were assumed to be 
driven vertically and to a maximum penetration depth of 50 m (164 ft). 
All pin piles associated with jacket foundations were also assumed to 
be driven vertically to a maximum penetration depth of 70 m (230 ft).
    The model also incorporated two different sound velocity profiles 
(related to in situ measurements of temperature, salinity, and pressure 
within the water column) to account for variations in the acoustic 
propagation conditions between summer (May through November) and winter 
(December only). Estimated pile driving schedules (Table 12) were used 
to calculate the SEL sound fields at different points in time during 
impact pile driving.
    Next, Ocean Wind modeled the sound field produced during impact 
pile driving by incorporating the results of the source level modeling 
into an acoustic propagation model. The sound propagation model 
incorporated site-specific environmental data that considers 
bathymetry, sound speed in the water column, and seabed geo-acoustics 
in the construction area.
    Ocean Wind estimated both acoustic ranges and exposure ranges. 
Acoustic ranges represent the distance to a harassment threshold based 
on sound propagation through the environment (i.e., independent of any 
receiver) while exposure range represents the distance at which an 
animal can accumulate enough energy to exceed a Level A harassment 
threshold in consideration of how it moves through the environment 
(i.e., using movement modeling). In both cases, the sound level 
estimates are calculated from three-dimensional sound fields and then, 
at each horizontal sampling range, the maximum received level that 
occurs within the water column is used as the received level at that 
range. These maximum-over-depth (Rmax) values are then 
compared to predetermined threshold levels to determine acoustic and 
exposure ranges to Level A harassment and Level B harassment zone 
isopleths. However, the ranges to a threshold typically differ among 
radii from a source, and also might not be continuous along a radii 
because sound levels may drop below threshold at some ranges and then 
exceed threshold at farther ranges. To minimize the influence of these 
inconsistencies, 5 percent of the farthest such footprints were 
excluded from the model data. The resulting range, 
R95%, was chosen to identify the area over which 
marine mammals may be exposed above a given threshold, because, 
regardless of the shape of the maximum-over-depth footprint, the 
predicted range encompasses at least 95 percent of the horizontal area 
that would be exposed to sound at or above the specified

[[Page 64920]]

threshold. The difference between Rmax and 
R95% depends on the source directivity and the 
heterogeneity of the acoustic environment. R95% 
excludes ends of protruding areas or small isolated acoustic foci not 
representative of the nominal ensonified zone. For purposes of 
calculating Level A harassment take, Ocean Wind applied 
R95% exposure ranges, not acoustic ranges, to 
estimate take and determine mitigation distances for the reasons 
described below.
    In order to best evaluate the (SELcum) harassment 
thresholds for PTS, it is necessary to consider animal movement, as the 
results are based on how sound moves through the environment between 
the source and the receiver. Applying animal movement and behavior 
within the modeled noise fields provides the exposure range, which 
allows for a more realistic indication of the distances at which PTS 
acoustic thresholds are reached that considers the accumulation of 
sound over different durations (note that in all cases the distance to 
the peak threshold is less than the SEL-based threshold).
    As described in Section 2.6 of Appendix A of Ocean Wind's ITA 
application, for modeled animals that have received enough acoustic 
energy to exceed a given Level A harassment threshold, the exposure 
range for each animal is defined as the closest point of approach (CPA) 
to the source made by that animal while it moved throughout the modeled 
sound field, accumulating received acoustic energy. The resulting 
exposure range for each species is the 95th percentile of the CPA 
distances for all animals that exceeded threshold levels for that 
species (termed the 95 percent exposure range 
(ER95%)). The ER95% ranges 
are species-specific rather than categorized only by any functional 
hearing group, which allows for the incorporation of more species-
specific biological parameters (e.g., dive durations, swim speeds, 
etc.) for assessing the impact ranges into the model. Furthermore, 
because these ER95% ranges are species-specific, 
they can be used to develop mitigation monitoring or shutdown zones.
    Tables 13 and 14 below represent the ER95% 
exposure ranges (for SELcum and SPLrms) for 
monopiles foundations, with Table 13 demonstrating the ranges using the 
summer sound speed profile and Table 14 using the winter sound speed 
profile. For both tables, a single monopiles and two monopiles per day 
are provided (the two per day ranges are shown in the parenthesis). 
NMFS notes that monopiles foundations constructed for Ocean Wind 1 are 
applicable to all WTGs and may be applicable to OSS structures, 
depending on the finalized buildout. Please see the Estimated Take 
section below, Appendix A of the Ocean Wind 1 ITA application, and 
Appendix R of the Ocean Wind 1 COP for further details on the acoustic 
modeling methodology.
    Displayed in Tables 13, 14, 15, and 16 below, Ocean Wind would also 
employ a noise abatement system during all impact pile driving of 
monopiles and pin piles. Noise abatement systems, such as bubble 
curtains, are sometimes used to decrease the sound levels radiated from 
a source. Additional information on sound attenuation devices is 
discussed in the Noise Abatement Systems section under Proposed 
Mitigation. In modeling the sound fields for Ocean Wind's proposed 
activities, hypothetical broadband attenuation levels of 0 dB, 6 dB, 10 
dB, 15 dB, and 20 dB were modeled to gauge the effects on the ranges to 
thresholds given these levels of attenuation. The results for 10 dB of 
sound attenuation are shown below and the other attenuation levels (0 
dB, 6 dB, 15 dB, and 20 dB) can be found in the ITA application.
BILLING CODE 3510-22-P

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[[Page 64922]]


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    Tables 15 and 16 below represent the exposure ranges 
(ER95%) for jacket foundations, with Table 15 
demonstrating the ranges using the summer sound speed profile and Table 
16 using the winter sound speed profile.

[[Page 64923]]

For both tables, two pin piles and three pin piles (the three pin pile 
ranges are shown in the parenthesis) per day are provided. NMFS notes 
that jacket foundations used in Ocean Wind 1 are applicable only to OSS 
structures, depending on the finalized buildout. As with Tables 13 and 
14 above, sound reductions of 0, 6, 10, 15, and 20 dB were modeled, but 
Ocean Wind would only be required to meet a minimum sound reduction 
level of 10 dB. The results for 10 dB of sound attenuation are shown 
below and the other attenuation levels (0 dB, 6 dB, 15 dB, and 20 dB) 
can be found in the ITA application.

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[[Page 64925]]


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    JASCO's Animal Simulation Model Including Noise Exposure (JASMINE) 
animal movement model was used to predict the number of marine mammals 
exposed to impact pile driving sound above NMFS' injury and behavioral

[[Page 64926]]

harassment thresholds. 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 animats (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 results in the mean number of animats expected to be exposed to 
a given threshold over the duration of the project. Due to the 
probabilistic nature of the process, fractions of animats may be 
predicted to exceed threshold. If, for example, 0.1 animats are 
predicted to exceed threshold in the model, that is interpreted as a 10 
percent chance that one animat will exceed a relevant threshold during 
the project, or equivalently, if the simulation were re-run 10 times, 1 
of the 10 simulations would result in an animat exceeding the 
threshold. Similarly, a mean number prediction of 33.11 animats can be 
interpreted as re-running the simulation where the number of animats 
exceeding the threshold may differ in each simulation but the mean 
number of animats over all of the simulations is 33.11. A portion of an 
individual marine mammal cannot be taken during a project, so it is 
common practice to round mean number animat exposure values to integers 
using standard rounding methods. However, for low-probability events it 
is more precise to provide the actual values.
    Sound fields were input into the JASMINE model, as described above, 
and animats were programmed based on the best available information to 
``behave'' in ways that reflect the behaviors of the 17 marine mammal 
species (18 stocks) expected to occur in the project area during the 
proposed 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. The parameters used in JASMINE describe animat movement in 
both the vertical and horizontal planes (e.g., direction, travel rate, 
ascent and descent rates, depth, bottom following, reversals, inter-
dive surface interval).
    Animats were modeled to move throughout the three-dimensional sound 
fields produced by each construction schedule for the entire 
construction period. For PTS exposures, both SPLpk and 
SELcum were calculated for each species based on the 
corresponding acoustic criteria. Once an animat is taken within a 24-
hrs period, the model does not allow it to be taken a second time in 
that same period, but rather resets the 24-hrs period on a sliding 
scale across 7 days of exposure. Specifically, an individual animat's 
accumulated energy levels (SELcum) are summed over that 24-
hrs period to determine its total received energy, and then compared to 
the PTS threshold. Takes by behavioral harassment are predicted when an 
animat enters an area ensonified by sound levels exceeding the 
associated behavioral harassment threshold.
    It is important to note that the calculated or predicted takes 
represent a take instance or event within one day and likely 
overestimate the number of individuals taken for some species. 
Specifically, as the 24-hr evaluation window means that individuals 
exposed on multiple days are counted as multiple takes. For example, 10 
takes may represent 10 takes of 10 different individual marine mammals 
occurring within 1 day each, or it may represent take of 1 individual 
on 10 different days; information about the species' daily and seasonal 
movement patterns helps to inform the interpretation of these take 
estimates. Also note that animal aversion was not incorporated into the 
JASMINE model runs that were the basis for the take estimate for any 
species.
    To conservatively estimate the number of animals likely to be 
exposed above thresholds, 60 WTG monopiles (at a rate of 2 per day for 
30 days) were assumed to be installed during the highest density month 
of each species. Additionally, 38 WTG monopiles (at a rate of 2 per day 
for 19 days) were also assumed to be installed during the month with 
the second highest species density. Two scenarios were considered for 
the three OSS foundations: either three monopiles (at a rate of two per 
day for 1 day and then 1 on a third day) or 48 pin piles (at a rate of 
three per day for a total of 16 days). The preliminary construction 
schedule is shown below in Table 17.

[[Page 64927]]

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    In summary, exposures were estimated in the following way:
    (1) The characteristics of the sound output from the proposed 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 within the exposure 
model framework 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 were calculated.
    The results of marine mammal exposure modeling for the full 
monopile scenario (WTG and OSS) and joint foundation approach (WTGs use 
monopiles; OSSs use jackets with pin piles) over 5 years assuming 10 dB 
attenuation only are shown in Tables 18 and 19, as these form the basis 
for the take authorization proposed in this document. These values were 
presented by Ocean Wind after the habitat-based density models were 
updated; please see the Revised Density and Take Estimate Memo 
available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility for more information.


[[Page 64928]]


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[[Page 64929]]


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[[Page 64930]]


[GRAPHIC] [TIFF OMITTED] TP26OC22.039

    Based on the exposure estimates for impact pile driving activities 
related to WTGs and OSS installation (monopile foundations and/or 
jacket foundations with pin piles), the take estimates, as proposed by 
NMFS, are found below in Tables 20 and 21. In the majority of cases, to 
determine the proposed take numbers, the calculated exposures were 
rounded to the next whole number, except where explanations have been 
provided to predict zero takes or to round up to average group size 
(see footnotes).

[[Page 64931]]

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[[Page 64932]]


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[[Page 64933]]


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Temporary Cofferdam Installation and Removal (Vibratory Pile Driving) 
Take Estimates
    Similar to the impact pile driving source level modeling, vibratory 
driving sound source characteristics were generated using the GRLWEAP 
2010 wave equation model (Pile Dynamics, Inc., 2010). Installation and 
removal of the cofferdams were modeled from a single location that was 
deemed representative of the two potential cable routes. The radiated 
sound waves were modeled as discrete point sources over the full length 
of the pile in the water. Ocean Wind is not proposing to employ noise 
mitigation during vibratory piling; therefore, no abatement is applied.
    To estimate the sound field to harassment isopleths generated 
during installation and removal during pile driving, a practical 
spreading loss model and a source level of 165.0 dB re 1 mPa was used 
(JASCO, 2021). Ocean Wind did not separately analyze the removal of the 
cofferdams using a vibratory extractor but has assumed that the removal 
would be acoustically comparable to the installation. Based on 
available pile driving data (Caltrans, 2020), this is a conservative 
assumption.
    Given the short duration of the activity and shallow, near coast 
location, animat exposure modeling was not conducted for cofferdam 
installation and removal to determine potential exposures from 
vibratory pile driving. Rather, the modeled acoustic range distances to 
isopleths corresponding to the relatively small Level A harassment and 
Level B harassment threshold values were used to calculate the area 
around the cofferdam predicted to be ensonified daily to levels that 
exceed the thresholds, or the Ensonified Area. The Ensonified Area is 
calculated as the following:

Ensonified Area = pr2,

where r is the linear acoustic range distance from the source to the 
isopleth to Level A harassment or Level B harassment thresholds.

    The Level A and Level B harassment threshold distances were mapped 
in GIS to remove any areas that overlapped land masses or areas where 
water was blocked by land as these areas would not be ensonified during 
the cofferdam installation and removal. These results are shown in 
Table 22.


[[Page 64934]]


[GRAPHIC] [TIFF OMITTED] TP26OC22.043

    Animal movement and exposure modeling was not performed by JASCO to 
determine potential exposures from vibratory pile driving. Rather, the 
average monthly density value from October through May for each marine 
mammal species (refer back to Table 9) were then multiplied by the 
estimated Level A harassment and Level B harassment areas and the 
expected durations for each component of the cofferdams (i.e., 
installation and removal). Finally, the resulting value was multiplied 
by the number of proposed activity days which is, for cofferdam 
installation and removal, conservatively estimated as 4 days (2 days 
for installation, 2 days for removal). For Level A harassment, monthly 
exposures were less than 0.01 for all species except harbor porpoise 
and harbor seals, which had a few monthly totals that were greater than 
0.01, but were always less than 0.04 (see Table 6-9 in the Revised 
Density and Take Estimate Memo). For Level B harassment, this yielded 
the exposure estimates found in Table 23.
    As previously stated, Ocean Wind anticipates that cofferdam 
installation and removal would occur only during Year 1 of the 
construction activities, specifically from October through March, 
although a small number of cofferdam removals could occur in Year 2 
during April or May, but it is not expected.

[[Page 64935]]

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[[Page 64936]]


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    Modeling of the Level A harassment exposures resulting from two 18-
hrs periods of vibratory pile driving and removal resulted in less than 
one exposure for all species for each month between October 1 and May 
31. Because of this, Ocean Wind anticipates and has only requested 
Level B harassment from vibratory installation and removal of 
cofferdams; no Level A harassment is expected. However, due to the 
coastal location of the cofferdams, some Level A harassment takes of 
the coastal stock of bottlenose dolphins and both species of phocids 
have been requested to be conservative.
    From the exposures calculated shown in Table 23, Ocean Wind 
utilized the average monthly value from October through May in their 
proposed take request, which are shown in Table 24. For some species, 
calculated Level B harassment exposures were zero or very low, but 
Ocean Wind requested take of an average group size and NMFS concurred 
this was appropriate given

[[Page 64937]]

the species potential occurrence in the area.
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[[Page 64938]]


[GRAPHIC] [TIFF OMITTED] TP26OC22.047

UXO/MEC Detonation
    To assess the impacts from UXO/MEC detonations, JASCO conducted 
acoustic modeling based on previous underwater acoustic assessment work 
that was performed jointly between NMFS and the United States Navy. 
JASCO evaluated the effects thresholds (for TTS, PTS, non-auditory 
injury, and mortality) based on the appropriate metrics to use as 
indicators of disturbance and injury: (1) peak pressure level; (2) 
sound exposure level (SEL); and (3) acoustic impulse. Charge weights of 
2.3 kgs, 9.1 kgs, 45.5 kgs, 227 kgs, and 454 kgs, which is the largest 
charge the Navy considers for the purposes of its analyses (see the 
Description of the Specified Activities section), were modeled to 
determine the ranges to mortality, gastrointestinal injury, lung 
injury, PTS, and TTS thresholds. These charge weights were modeled at 
four different locations off Massachusetts, consisting of different 
depths (12 m (Site S1), 20 m (Site S2), 30 m (Site S3), and 45 m (Site 
S4)). The sites were deemed to be representative of both the export 
cable route and the lease area. Here, we present distances to PTS and 
TTS thresholds for only the 454 kg UXO/MEC as this has the greatest 
potential for these impacts. Ocean Wind would be committed to 
mitigating these distances. Due to the implementation of mitigation and 
monitoring measures, the potential for mortality and non-auditory 
injury is low and Ocean Wind did not request, and we are not proposing 
to authorize take by mortality or non-auditory injury. For this reason 
we are not presenting all modeling results here; however, they can be 
found in Appendix C of the application.
     Shallow water ECR: Site S1; In the channel within 
Narragansett Bay (12 m depth);
     Shallow water ECR: Site S2; Intermediate waters outside of 
Narragansett Bay (20 m depth);
     Shallow water lease area: Site S3; Shallower waters in the 
southern portion of the Hazard Zone 2 area (30 m depth);
     Deeper water lease area: Site S4; Deeper waters in 
northern portion of the Hazard Zone 2 area (45 m depth).
    In their UXO/MEC modeling report (Appendix C of Ocean Wind's ITA 
application), JASCO notes that although the sample sites were located 
offshore of Massachusetts, the chosen sites share similar depths, sea 
surface, and seabed conditions as the project area where Ocean Wind 1 
is proposed to be developed and making it an ideal as a proxy.
    Based on the depths within the Ocean Wind 1 location, Site S1 (12 
m) was chosen as the most representative depth to assess UXO/MEC 
detonations within the export cable route corridor. Sites S2, S3, and 
S4 (20 m, 30 m, and 45 m) are applicable to the wind farm area (i.e., 
location of the WTGs and OSSs). The SEL-based 
(R95%) isopleths for Level A harassment (PTS) and 
Level B harassment (TTS) were calculated from the horizontal distances 
shown in Tables 25 and 26. For all species, the distance to the SEL 
thresholds exceeded that for the peak thresholds. Model results for all 
sites and all charge weights can be found in Appendix C of Ocean Wind's 
application. Further, JASCO presented the results for both mitigated 
and unmitigated scenarios in the ITA application. Since that time, 
Ocean Wind has committed to the use of a noise mitigation system during 
all detonations, and plans to achieve a 10 dB noise reduction as 
minimum. As a result, the August 2022 Revised Density and Take Estimate 
Memo carried forward only the mitigated UXO/MEC scenario. Therefore, 
only the attenuated results are presented in Tables 25 and 26 and were 
carried forward into the exposure and take estimation. Additional 
information can be found in JASCO's UXO/MEC report and the Revised 
Density and Take Estimate Memo on NMFS' website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility).
    NMFS notes that the more detailed results for the mortality and 
non-auditory injury analysis to marine mammals for onset 
gastrointestinal injury, onset lung injury, and onset of mortality can 
be found in Appendix C of the ITA application, which can be found on 
NMFS' website. NMFS

[[Page 64939]]

preliminarily concurs with Ocean Wind's analysis and does not expect or 
propose to authorize any non-auditory injury, serious injury, or 
mortality of marine mammals from UXO/MEC detonation. The modeled 
distances to the mortality threshold for all UXO/MECs sizes for all 
animal masses are small (i.e., 5-553 m; see Table 38 in Appendix C of 
Ocean Wind's application), as compared to the distance/area that can be 
effectively monitored. The modeled distances to non-auditory injury 
thresholds range from 5-658 m (see Tables 30 and 34 in Appendix C of 
the application). Ocean Wind would be required to conduct extensive 
monitoring using both PSOs and PAM operators and clear an area of 
marine mammals prior to detonating any UXO. Given that Ocean Wind would 
be employing multiple platforms to visually monitor marine mammals as 
well as passive acoustic monitoring, it is reasonable to assume that 
marine mammals would be reliably detected within approximately 660 m of 
the UXO/MEC being detonated, the potential for mortality or non-
auditory injury is de minimis.
[GRAPHIC] [TIFF OMITTED] TP26OC22.048

[GRAPHIC] [TIFF OMITTED] TP26OC22.049

    JASCO's take estimate analysis assumed that all 10 of the potential 
UXOs/MECs would be 454 kg in weight. Although Ocean Wind does not 
expect that all UXOs/MECs would consist of this charge weight, they 
assumed as much to be conservative in estimating take. The take 
estimate calculations assume that the ten 454 kg charges would be split 
between the different depths (20 m-45 m), as these were considered 
representative for the project area.
    To calculate the potential marine mammal exposures from any UXO/MEC 
detonations, the horizontal distances from Tables 25 and 26 were 
multiplied by the highest monthly species density in the Wind Farm Area 
(based on the Revised Density and Take Estimate Memo) for each of the 
20 m to 45 m representative depths and by the highest monthly species 
density in the export cable route for the 12 m depth (see Table 11 for 
the densities used and Table 6-Y NEW from the Revised Density and Take 
Estimate Memo for all of the available densities from May through 
October). The resulting value from the areas multiplied by the

[[Page 64940]]

respective species densities were then multiplied by the number of 
UXOs/MECs estimated at each of the depths (two UXOs/MECs at 12 m, three 
UXOs/MECs at 20 m, three UXOs/MECs at 30 m, and two UXOs/MECs at 40 m), 
for a total of 10 predicted UXOs. However, Ocean Wind has committed not 
to conduct more than one UXO/MEC detonation on any given day.
    Level A harassment exposures resulting from UXO/MEC detonations are 
considered unlikely, but possible. To reduce impacts, a noise abatement 
system (likely a bubble curtain or similar device) capable of achieving 
10 dB of sound attenuation would be implemented. This level of sound 
reduction is considered achievable and reasonable given work being done 
in European waters (Bellmann et al., 2020; Bellmann and Betke, 2021).
    The estimated maximum PTS and TTS exposures assuming 10 dB of sound 
attenuation are presented in Table 27. These results are found in 
Appendix C, Tables 15 and 16 of Ocean Wind's ITA application (Ocean 
Wind, 2022b). As indicated previously, where there is no more than one 
detonation per day, the TTS threshold is expected to also appropriately 
represent the level above which any behavioral disturbance might occur; 
so the Level B harassment exposures noted below could include TTS or 
behavioral disturbance.
BILLING CODE 3510-22-P

[[Page 64941]]

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[[Page 64942]]


    Table 27 presents the attenuated (10 dB) PTS and TTS take 
estimates. Although the original ITA application described and analyzed 
the unattenuated estimates given uncertainty with exact mitigation 
during UXO/MEC detonations, given the commitment by Ocean Wind to 
mitigate the proposed UXO/MEC detonations, NMFS concurs that it is 
appropriate to carry forward the take estimates from the mitigated (10 
dB sound attenuation) scenario that are found in the Revised Density 
and Take Estimate Memo received in August 2022 (Table 28).

[[Page 64943]]

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BILLING CODE 3510-22-C

[[Page 64944]]

    Due to mitigation measures that would be implemented during any 
UXO/MEC detonations, the likelihood of Level A harassment take and some 
Level B harassment take for some species was reduced. However, there is 
still potential for Level A harassment take for some species, such as 
for harbor porpoises and both harbor and gray seals.

HRG Surveys

    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate ranges to the Level A harassment and 
Level B harassment isopleths. In cases when the source level for a 
specific type of HRG equipment is not provided in Crocker and 
Fratantonio (2016), NMFS recommends that either the source levels 
provided by the manufacturer be used, or, in instances where source 
levels provided by the manufacturer are unavailable or unreliable, a 
proxy from Crocker and Fratantonio (2016) be used instead. Ocean Wind 
utilized the following criteria for selecting the appropriate inputs 
into the NMFS User Spreadsheet Tool (NMFS, 2018):
    (1) For equipment that was measured in Crocker and Fratantonio 
(2016), the reported SL for the most likely operational parameters was 
selected.
    (2) For equipment not measured in Crocker and Fratantonio (2016), 
the best available manufacturer specifications were selected. Use of 
manufacturer specifications represent the absolute maximum output of 
any source and do not adequately represent the operational source. 
Therefore, they should be considered an overestimate of the sound 
propagation range for that equipment.
    (3) For equipment that was not measured in Crocker and Fratantonio 
(2016) and did not have sufficient manufacturer information, the 
closest proxy source measured in Crocker and Fratantonio (2016) was 
used.
    The Dura-spark measurements and specifications provided in Crocker 
and Fratantonio (2016) were used for all sparker systems proposed for 
the HRG surveys. These included variants of the Dura-spark sparker 
system and various configurations of the GeoMarine Geo-Source sparker 
system. The data provided in Crocker and Fratantonio (2016) represent 
the most applicable data for similar sparker systems with comparable 
operating methods and settings when manufacturer or other reliable 
measurements are not available. Crocker and Fratantonio (2016) provide 
S-Boom measurements using two different power sources (CSP-D700 and 
CSP-N). The CSP-D700 power source was used in the 700 joules (J) 
measurements but not in the 1,000 J measurements. The CSP-N source was 
measured for both 700 J and 1,000 J operations but resulted in a lower 
source level; therefore, the single maximum source level value was used 
for both operational levels of the S-Boom.
    Table 29 identifies all the representative survey equipment that 
operates below 180 kHz (i.e., at frequencies that are audible and have 
the potential to disturb marine mammals) that may be used in support of 
planned survey activities, and are likely to be detected by marine 
mammals given the source level, frequency, and beamwidth of the 
equipment. The lowest frequency of the source was used when calculating 
the absorption coefficient.

[[Page 64945]]

[GRAPHIC] [TIFF OMITTED] TP26OC22.052


[[Page 64946]]


    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimation of Level A harassment. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For mobile sources (such as the active 
acoustic sources proposed for use during Ocean Wind's HRG surveys), the 
User Spreadsheet predicts the closest distance at which a stationary 
animal would not incur PTS if the sound source traveled by the animal 
in a straight line at a constant speed. JASCO modeled distances to 
Level A harassment isopleths for all types of HRG equipment and all 
marine mammal functional hearing groups using the NMFS User Spreadsheet 
and NMFS Technical Guidance (2018).
    For HRG surveys, in order to better consider the narrower and 
directional beams of the sources, NMFS has developed an additional tool 
for determining the sound pressure level (SPLrms) at the 
160-dB isopleth for the purposes of estimating the extent of Level B 
harassment isopleths associated with HRG survey equipment (NMFS, 2020). 
This methodology incorporates frequency-dependent absorption and some 
directionality to refine estimated ensonified zones. Ocean Wind used 
NMFS' methodology with additional modifications to incorporate a 
seawater absorption formula and account for energy emitted outside of 
the primary beam of the source. For sources that operate with different 
beam widths, the maximum beam width was used (see Table 30). The lowest 
frequency of the source was used when calculating the absorption 
coefficient.

[[Page 64947]]

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[[Page 64948]]


    Potential exposures of marine mammals to acoustic impacts from HRG 
survey activities were estimated by assuming an active survey distance 
of 70 km per 24-hour period. This assumes the vessel would be traveling 
at a speed of 4 knots and only during periods where active acoustics 
were being used with frequency ranges less than 180 kHz. A vessel that 
would only operate during daylight hours is assumed to have an active 
survey distance of 35 km.
    To maintain a potential for 24-hour HRG surveys, the corresponding 
Level A and Level B harassment areas were calculated for each source 
based on the threshold distances, assuming a 70 km operational period 
(Table 31).

[[Page 64949]]

[GRAPHIC] [TIFF OMITTED] TP26OC22.054


[[Page 64950]]


    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Ocean Wind that 
has the potential to result in Level B harassment of marine mammals, 
sound produced by the Applied Acoustics Dura-Spark UHD sparkers and 
GeoMarine Geo-Source sparker would propagate furthest to the Level B 
harassment threshold (141 m; Table 31). For the purposes of the 
exposure analysis, it was conservatively assumed that sparkers would be 
the dominant acoustic source for all survey days. Thus, the distances 
to the isopleths corresponding to the threshold for Level B harassment 
for sparkers (141 m) was used as the basis of the take calculation for 
all marine mammals.
    The modeled distances to isopleths corresponding to the Level A 
harassment threshold are very small (less than 1 m) for three of the 
four marine mammal functional hearing groups that may be impacted by 
the proposed activities (i.e., low frequency and mid frequency 
cetaceans, and phocid pinnipeds). The largest distance to the Level A 
harassment isopleth is 36.5 m, associated with use of the GeoPulse 
5430A. Because this distance is small, coupled with the characteristics 
of sounds produced by HRG equipment in general (including the GeoPulse 
5430A), neither NMFS nor Ocean Wind anticipates Level A harassment 
during HRG surveys, even absent mitigation. Therefore, Ocean Wind has 
not requested and NMFS has not proposed authorizing Level A harassment 
take incidental to HRG surveys.
    The estimated exposures were calculated using the average density 
for the 12 months for each marine mammal species, or the annual density 
when only one value was available. These densities were multiplied by 
the number of proposed survey days (Years 1, 4, 5 = 88; Years 2, 3 = 
180) and then by the area ensonified per day (70 km multiplied by the 
areas found in Table 31). This approach was taken because Ocean Wind 
does not know which months HRG surveys would occur in. This approach 
produced a conservative estimate of exposures and, subsequently, take 
for each species.
    Based on the analysis above, the modeled Level A and B harassment 
exposures of marine mammals resulting from HRG survey activities are 
shown in Table 32.

[[Page 64951]]

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[[Page 64952]]


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[[Page 64953]]


    NMFS reiterates that any proposed to be authorized takes would be 
by Level B harassment only, in the form of disruption of behavioral 
patterns for individual marine mammals resulting from exposure to noise 
from certain HRG acoustic sources. Based primarily on the 
characteristics of the signals produced by the acoustic sources planned 
for use and due to the small PTS zones associated with HRG equipment 
types proposed for use, Level A harassment is neither anticipated (even 
absent mitigation), nor proposed to be authorized. Consideration of the 
anticipated effectiveness of the measures (i.e., exclusion zones and 
shutdown measures), discussed in detail below in the Proposed 
Mitigation section, further strengthens the conclusion that Level A 
harassment is not a reasonably anticipated outcome of the survey 
activity. Ocean Wind did not request authorization of take by Level A 
harassment, and no take by Level A harassment is proposed for 
authorization by NMFS. As described previously, no serious injury or 
mortality is anticipated or proposed to be authorized for this 
activity.
    The proposed take estimates presented here assumed that HRG surveys 
would be occurring for 24 hours each day. Adjustments based on the mean 
group size estimates (i.e., increasing take to the mean group size if 
the calculated exposures were fewer) were included for the following 
species: sei whales (Kenney and Vigness-Raposa, 2010), minke whales 
(Kenney and Vigness-Raposa, 2010), humpback whales (CeTAP, 1982), sperm 
whales (Barkaszi and Kelly, 2019), Atlantic spotted dolphins (Kenney 
and Vigness-Raposa, 2010), both species of pilot whales (Kenney and 
Vigness-Raposa, 2010), and Risso's dolphins (Barkaszi and Kelly, 2019).
    Years 1, 4, and 5 in Table 33 below represent HRG surveys occurring 
during the pre- and post-construction phases of Ocean Wind's proposed 
project. Each of these years is based on an annual HRG survey effort of 
88 days (264 total effort over 3 years). Years 2 and 3 would include 
HRG surveys occurring during the construction of other elements of 
Ocean Wind's project. Each of these years is based on an annual HRG 
survey effort of 180 days (360 days total over 2 years).

[[Page 64954]]

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[[Page 64955]]


[GRAPHIC] [TIFF OMITTED] TP26OC22.058

Total Proposed Ocean Wind Take Across All Activity Types

    Level A harassment and Level B harassment proposed takes for the 
combined activities of impact pile driving assuming 10 dB of sound 
attenuation during the installation of monopiles and/or pin piles; 
vibratory pile driving for cofferdam installation and removal; HRG 
surveys; and potential UXO/MEC detonation (no sound attenuation) are 
provided in Table 34. NMFS also presents the percentage of each marine 
mammal stock estimated to be taken based on the total amount of take in 
Table 35. The mitigation and monitoring measures provided in the 
Proposed Mitigation and Proposed Monitoring and Reporting sections are 
activity-specific and are

[[Page 64956]]

designed to minimize acoustic exposures to marine mammal species.
    The take numbers NMFS proposed for authorization (Table 35) are 
considered conservative for the following key reasons:
     Proposed take numbers for impact pile driving assume a 
maximum piling schedule (two monopiles and three pin piles installed 
per 24-hour period);
     Proposed take numbers for vibratory pile driving assume 
that a sheet pile temporary cofferdam will be installed (versus the 
alternative installation of a gravity cell cofferdam, for which no take 
is anticipated);
     Proposed take numbers for pile driving are conservatively 
based on maximum densities across the proposed construction months; 
and,
     Proposed Level A harassment take numbers do not fully 
account for the likelihood that marine mammals will avoid a stimulus 
when possible before the individual accumulates enough acoustic energy 
to potentially cause auditory injury, or the effectiveness of the 
proposed mitigation measures.
    The Year 1 take estimates include 88 days of HRG surveys, cofferdam 
installation/removal, and mitigated UXO/MEC detonations. Year 2 
includes 180 days of HRG surveys, WTG impact installation using 
monopile foundations, and OSS impact installation using pin piles for 
jacket foundations. Year 3 includes 180 days of HRG surveys only. And 
Years 4 and 5 include 88 days of HRG surveys. Although temporary 
cofferdam installation/removal could occur in Year 2, all of the 
proposed takes were allocated to Year 1 as this represents the most 
accurate construction scenario. All impact pile driving activities for 
the WTGs and OSSs could also occur outside of Year 2; however, all of 
the takes were allocated to Year 2 as this represents the most likely 
scenario.
BILLING CODE 3510-22-P

[[Page 64957]]

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[[Page 64958]]


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[[Page 64959]]


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[[Page 64960]]


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    In making the negligible impact determination and the necessary 
small numbers finding, NMFS assesses the greatest number of proposed 
take of marine mammals that could occur within any one year, which in 
the case of this rule is based on the predicted Year 2 for all species, 
except the coastal stock of bottlenose dolphins, which used the 
calculated Level A harassment from Year 1 with the calculated Level B 
harassment from Year 2. In this calculation, the maximum estimated 
number of Level A harassment takes in any one year is summed with the 
maximum estimated number of Level B harassment takes in any one year 
for each species to yield the highest number of estimated take that 
could occur in any year. We recognize that certain activities could 
shift within the 5-year effective period of the rule; however, the rule 
allows for that flexibility and the takes are not expected to exceed 
those shown in Table 36 in any year.

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[[Page 64962]]


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BILLING CODE 3510-22-C

[[Page 64963]]

Proposed Mitigation

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

Training and Coordination

    Prior to the onset of any in-water activities involving vessel use, 
pile driving, UXO/MEC detonation, and HRG surveys, and when new 
personnel join the work, Ocean Wind would conduct briefings for 
construction supervisors and crews, marine mammal observer and acoustic 
monitoring teams, and all Ocean Wind staff prior to the start of all 
pile driving, UXO/MEC detonation, and HRG survey activity, and when new 
personnel join the work, in order to explain responsibilities, 
communication procedures, and marine mammal mitigation, monitoring, and 
reporting requirements. More information on vessel crew training 
requirements can be found in the Vessel Strike Avoidance Measures 
section below.
North Atlantic Right Whale Awareness Monitoring
    Ocean Wind must use available sources of information on North 
Atlantic right whale presence, including daily monitoring of the Right 
Whale Sightings Advisory System, monitoring of Coast Guard VHF Channel 
16 throughout each day to receive notifications of any sightings, and 
information associated with any regulatory management actions (e.g., 
establishment of a zone identifying the need to reduce vessel speeds). 
Maintaining daily awareness and coordination affords increased 
protection of North Atlantic right whales by understanding North 
Atlantic right whale presence in the area through ongoing visual and 
passive acoustic monitoring efforts and opportunities (outside of Ocean 
Wind's efforts), and allows for planning of construction activities, 
when practicable, to minimize potential impacts on North Atlantic right 
whales.
Protected Species Observers and PAM Operator Training
    Ocean Wind would only employ NMFS-approved PSOs and PAM operators. 
The PSO field team and PAM team will have a lead member (designated as 
the ``Lead PSO'' or ``PAM Lead'') who will have prior experience 
observing mysticetes, odontocetes and pinnipeds in the Northwestern 
Atlantic Ocean on other offshore projects requiring PSOs. Any remaining 
PSOs and PAM operators must have previous experience observing marine 
mammals during projects and must have the ability to work with all 
required and relevant software and equipment. New and/or inexperienced 
PSOs would be paired with an experienced PSO to ensure that the quality 
of marine mammal observations and data recording is kept consistent.
    All PSOs and PAM operators would be required to complete a Permits 
and Environmental Compliance Plan (PECP) training, as well as a two-day 
training and refresher session. These trainings will be held with the 
PSO provider and Project compliance representatives and will occur 
before the start of project activities related to the construction and 
development of the Ocean Wind 1 Offshore Wind Energy Facility. PSOs 
would be required during all foundation installation, cofferdam 
installation/removal, UXO/MEC detonation, and HRG surveys. More 
information on requirements during each activity can be found in the 
Proposed Monitoring and Reporting section.

Vessel Strike Avoidance Measures

    This proposed rule contains numerous vessel strike avoidance 
measures. Ocean Wind will be required to comply with these measures 
except under circumstances when doing so would create an imminent and 
serious

[[Page 64964]]

threat to a person or vessel, or to the extent that a vessel is unable 
to maneuver and, because of the inability to maneuver, the vessel 
cannot comply (e.g., due to towing, etc.). Vessel operators and crews 
will receive protected species identification training. This training 
will cover sightings of marine mammals and other protected species 
known to occur or which have the potential to occur in the project 
area. It will include training on making observations in both good 
weather conditions (i.e., clear visibility, low wind, and low sea 
state) and bad weather conditions (i.e., fog, high winds and high sea 
states, in glare). Training will not only include identification 
skills, but will also include information and resources available 
regarding applicable Federal laws and regulations for protected 
species.
    Ocean Wind will abide by the following vessel strike avoidance 
measures:
     All vessel operators and crews must maintain a vigilant 
watch for all marine mammals and slow down, stop their vessel, or alter 
course (as appropriate) and regardless of vessel size, to avoid 
striking any marine mammal.
     During any vessel transits within or to/from the Ocean 
Wind project area, such as for crew transfers), an observer would be 
stationed at the best vantage point of the vessel(s) to ensure that the 
vessel(s) are maintaining the appropriate separation distance from 
marine mammals.
     Year-round, all vessel operators will monitor, the 
project's Situational Awareness System, WhaleAlert, US Coast Guard VHF 
Channel 16, and the Right Whale Sighting Advisory System (RWSAS) for 
the presence of North Atlantic right whales once every 4-hour shift 
during project-related activities. The PSO and PAM operator monitoring 
teams for all activities will also monitor these systems no less than 
every 12 hours. If a vessel operator is alerted to a North Atlantic 
right whale detection within the project area, they will immediately 
convey this information to the PSO and PAM teams. For any UXO/MEC 
detonation, these systems will be monitored for 24 hours prior to 
blasting.
     Any observations of any large whale by any Ocean Wind 
staff or contractor, including vessel crew, must be communicated 
immediately to PSOs and all vessel captains to increase situational 
awareness.
     All vessels would comply with existing NMFS regulations 
and speed restrictions and state regulations as applicable for North 
Atlantic right whales.
     Between November 1st and April 30th, all vessels, 
regardless of size, would operate port to port (specifically from ports 
in New Jersey, New York, Maryland, Delaware, and Virginia) at 10 knots 
or less.
     All vessels, regardless of size, would immediately reduce 
speed to 10 kts or less when any large whale, mother/calf pairs, or 
large assemblages of non-delphinid cetaceans are observed near (within 
500 m) an underway vessel.
     All vessels, regardless of size, would immediately reduce 
speed to 10 kts or less when a North Atlantic right whale is sighted, 
at any distance, by an observer or anyone else on the vessel.
     If a vessel is traveling at greater than 10 kts, in 
addition to the required dedicated visual observer, real-time PAM of 
transit corridors must be conducted prior to and during transits. If a 
North Atlantic right whale is detected via visual observation or PAM 
within or approaching the transit corridor, all crew transfer vessels 
must travel at 10 kts or less for the following 12 hours. Each 
subsequent detection will trigger a 12-hour reset. A slowdown in the 
transit corridor expires when there has been no further visual or 
acoustic detection in the transit corridor in the past 12 hours.
     All underway vessels (e.g., transiting, surveying) must 
have a dedicated visual observer on duty at all times to monitor for 
marine mammals within a 180[deg] direction of the forward path of the 
vessel (90[deg] port to 90[deg] starboard). Visual observers must be 
equipped with alternative monitoring technology for periods of low 
visibility (e.g., darkness, rain, fog, etc.). The dedicated visual 
observer must receive prior training on protected species detection and 
identification, vessel strike minimization procedures, how and when to 
communicate with the vessel captain, and reporting requirements in this 
proposed action. Visual observers may be third-party observers (i.e., 
NMFS-approved PSOs) or crew members and must not have any other duties 
other than observing for marine mammals. Observer training related to 
these vessel strike avoidance measures must be conducted for all vessel 
operators and crew prior to the start of in-water construction 
activities to distinguish marine mammals from other phenomena and 
broadly to identify a marine mammal as a North Atlantic right whale, 
other whale (defined in this context as sperm whales or baleen whales 
other than North Atlantic right whales), or other marine mammals. 
Confirmation of the observers' training and understanding of the ITA 
requirements must be documented on a training course log sheet and 
reported to NMFS.
     All vessel operators and crews, regardless of their 
vessel's size, must maintain a vigilant watch for all marine mammals 
and slow down, stop their vessel, or alter course, as appropriate, to 
avoid striking any marine mammal.
     All vessels must maintain a minimum separation distance of 
500 m from North Atlantic right whales. If a whale is observed but 
cannot be confirmed as a species other than a North Atlantic right 
whale, the vessel operator must assume that it is a North Atlantic 
right whale and take appropriate action.
     If underway, all vessels must steer a course away from any 
sighted North Atlantic right whale at 10 kts or less such that the 500-
m minimum separation distance requirement is not violated. If a North 
Atlantic right whale, or a large whale that cannot be confirmed to 
species, is sighted within 500 m of an underway vessel, that 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 500 m.
     All vessels must maintain a minimum separation distance of 
100 m from sperm whales and non-North Atlantic right whale baleen 
whales. If one of these species is sighted within 100 m of an underway 
vessel, that 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 minimum separation distance of 50 m from all 
delphinoid cetaceans and pinnipeds, with an exception made for those 
that approach the vessel (e.g., bow-riding dolphins). If a delphinoid 
cetacean or pinniped is sighted within 50 m of an underway vessel, that 
vessel must shift the engine to neutral, with an exception made for 
those that approach the vessel (e.g., bow-riding dolphins). Engines 
will not be engaged until the animal(s) has moved outside of the 
vessel's path and beyond 50 m.
     When a marine mammal(s) is sighted while a vessel is 
underway, the vessel must take action as necessary to avoid violating 
the relevant separation distances (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area. If a marine mammal(s) is 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engine(s) until 
the animal(s) is clear of

[[Page 64965]]

the area. This does not apply to any vessel towing gear or any 
situation where respecting the relevant separation distance would be 
unsafe (i.e., any situation where the vessel is navigationally 
constrained.
     All vessels underway must not divert or alter course in 
order to approach any marine mammal. Any vessel underway must avoid 
excessive speed or abrupt changes in direction.
     For in-water construction heavy machinery activities other 
than impact or vibratory pile driving, if a marine mammal in on a path 
towards or comes within 10 m of equipment, Ocean Wind must cease 
operations until the marine mammal has moved more than 10 m on a path 
away from the activity to avoid direct interaction with equipment.
     Individuals implementing the monitoring protocol will 
assess its effectiveness using an adaptive approach. All 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 
Ocean Wind.
    With the measures described herein, NMFS has 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.

Fishery Monitoring Surveys

Training
    All crew undertaking the fishery survey activities would be 
required to receive protected species identification training prior to 
activities occurring.
During Vessel Use
    During all fishery monitoring activities that require the use of a 
vessel as a platform, Ocean Wind would follow the Vessel Strike 
Avoidance Measures, described in the section above.
    Vessels would also undertaking the following measures:
     Specifically for trawl surveys, marine mammal monitoring 
will occur prior to, during, and after haul-back, and gear will not be 
deployed if a marine mammal is observed in the area;
     Trawl operations will only start after 15 minutes of no 
marine mammal sightings within 1 nm of the sampling station; and,
     During daytime sampling for the research trawl surveys, 
Ocean Wind will maintain visual monitoring efforts during the entire 
period of time that trawl gear is in the water from deployment to 
retrieval. If a marine mammal is sighted before the gear is removed 
from the water, the vessel will slow its speed and steer away from the 
observed animal(s).
Gear-Specific Best Management Practices (BMPs)
    Ocean Wind would be required to undertake BMPs to reduce risks to 
marine mammals during several types of activities. These include:
     BRUV sampling and chevron trap usage, for example, would 
utilize specific mitigation measures to reduce impacts to marine 
mammals. These specifically include the breaking strength of all lines 
being less than 1,700 pounds (771 kg), limited soak durations of 90 
minutes or less, no gear being left without a vessel nearby, and a 
delayed deployment of gear if a marine mammal is sighted nearby;
     The permit number will be written clearly on buoy and any 
lines that go missing will be reported to NOAA Fisheries' Greater 
Atlantic Regional Fisheries Office (GARFO) Protected Resources Division 
as soon as possible;
     If marine mammals are sighed near the proposed sampling 
location, chevron traps and/or BRUVs will not be deployed;
     If a marine mammal is determined to be at risk of 
interaction with the deployed gear, all gear will be immediately 
removed;
     Marine mammal monitoring would occur during daylight hours 
and begin prior to the deployment of any gear (e.g., trawls, longlines) 
and continue until all gear has been retrieved;
     If marine mammals are sighted in the vicinity within 15 
minutes prior to gear deployment and it is determined the risks of 
interaction are present regarding the research gear, the sampling 
station will either move to another location or suspend activities 
until there are no marine mammal sightings for 15 minutes within 1 nm.

WTG and OSS Foundation Installation

Seasonal and Daily Restrictions
    No foundation impact pile driving activities would occur January 1 
through April 30. This seasonal restriction would minimize the 
potential for North Atlantic right whales to be exposed to pile driving 
noise. Based on the best available information (Roberts et al., 2022), 
the highest densities of North Atlantic right whales in the project 
area are expected during the months of January through April. NMFS is 
requiring this seasonal restriction to minimize the potential for North 
Atlantic right whales to be exposed to noise incidental to impact pile 
driving of monopiles, which is expected to greatly reduce the number of 
takes of North Atlantic right whales.
    No more than two foundation monopiles would be installed per day. 
Monopiles would be no larger than 11-m in diameter, representing the 
larger end of the tapered 8/11-m monopile design. If jacket foundations 
are used for OSSs, pin piles would be no larger than 2.44-m in 
diameter. For all monopiles and pin piles, the minimum amount of hammer 
energy necessary to effectively and safely install and maintain the 
integrity of the piles must be used. Hammer energies must not exceed 
4,000 kJ.
    Ocean Wind has requested authorization to initiate pile driving 
during nighttime when detection of marine mammals is visually 
challenging. To date, Ocean Wind has not submitted a plan containing 
the information necessary, including evidence, that their proposed 
systems are capable of detecting marine mammals, particularly large 
whales, at distances necessary to ensure mitigation measures are 
effective and, in general, the scientific literature on these 
technologies demonstrate there is a high degree of uncertainty in 
reliably detecting marine mammals at distances necessary for this 
project. Therefore, NMFS is not proposing, at this time, to allow Ocean 
Wind to initiate pile driving later than 1.5 hours after civil sunset 
or 1 hour before civil sunrise. We are, however, proposing to encourage 
and allow Ocean Wind the opportunity to further investigate and test 
advanced technology detection systems to support their request. NMFS is 
proposing to condition the LOA such that nighttime pile driving would 
only be allowed if Ocean Wind submits an Alternative Monitoring Plan to 
NMFS for approval that proves the efficacy of their night vision 
devices (e.g., mounted thermal/IR camera systems, hand-held or wearable 
night vision devices (NVDs), infrared (IR) spotlights) in detecting 
protected marine mammals. If the plan does not include a full 
description of the proposed technology, monitoring methodology, and 
data supporting that marine mammals can reliably and effectively be 
detected within the clearance and shutdown zones for monopiles before 
and during impact pile driving, nighttime pile driving (unless a pile 
was initiated 1.5 hours prior to civil sunset) will not be allowed. The 
Plan should identify the efficacy of the technology at detecting marine 
mammals in the clearance and shutdowns under all the various conditions 
anticipated during

[[Page 64966]]

construction, including varying weather conditions, sea states, and in 
consideration of the use of artificial lighting.
Noise Abatement Systems
    Ocean Wind would employ noise abatement systems, also known as 
noise mitigation systems (NMS), during all impact pile driving 
(monopiles and pin piles) to reduce the sound pressure levels that are 
transmitted through the water in an effort to reduce ranges to acoustic 
thresholds and minimize any acoustic impacts resulting from pile 
driving. Ocean Wind would be required to employ a big double bubble 
curtain or a combination of two or more NMS during these activities, as 
well as the adjustment of operational protocols to minimize noise 
levels.
    Two categories of NMS exist: primary and secondary. A primary NMS 
would be used to reduce the level of noise produced by the pile driving 
activities at the source, typically through adjustments on to the 
equipment (e.g., hammer strike parameters). Primary NMS' are still 
evolving and will be considered for use during mitigation efforts when 
the NMS has been demonstrated as effective in commercial projects. 
However, as primary NMS are not fully effective at eliminating, a 
secondary NMS would be employed. The secondary NMS is a device or group 
of devices that would reduce noise as it was transmitted through the 
water away from the pile, typically through a physical barrier that 
would reflect or absorb sound waves and, therefore reducing the 
distance the higher energy sound propagates through the water column. 
Together, these systems must reduce noise levels to the lowest level 
practicable with the goal of not exceeding measured ranges to Level A 
harassment and Level B harassment isopleths corresponding to those 
modeled assuming 10-dB sound attenuation, pending results of SFV (see 
the Acoustic Monitoring for Sound Field and Harassment Isopleth 
Verification section).
    Noise abatement systems, such as bubble curtains, are sometimes 
used to decrease the sound levels radiated from a source. Bubbles 
create a local impedance change that acts as a barrier to sound 
transmission. The size of the bubbles determines their effective 
frequency band, with larger bubbles needed for lower frequencies. There 
are a variety of bubble curtain systems, confined or unconfined 
bubbles, and some with encapsulated bubbles or panels. Attenuation 
levels also vary by type of system, frequency band, and location. Small 
bubble curtains have been measured to reduce sound levels but effective 
attenuation is highly dependent on depth of water, current, and 
configuration and operation of the curtain (Austin et al., 2016; 
Koschinski and L[uuml]demann, 2013). Bubble curtains vary in terms of 
the sizes of the bubbles and those with larger bubbles tend to perform 
a bit better and more reliably, particularly when deployed with two 
separate rings (Bellmann, 2014; Koschinski and L[uuml]demann, 2013; 
Nehls et al., 2016). Encapsulated bubble systems (e.g., Hydro Sound 
Dampers (HSDs)), can be effective within their targeted frequency 
ranges, e.g., 100-800 Hz, and when used in conjunction with a bubble 
curtain appear to create the greatest attenuation. The literature 
presents a wide array of observed attenuation results for bubble 
curtains. The variability in attenuation levels is the result of 
variation in design, as well as differences in site conditions and 
difficulty in properly installing and operating in-water attenuation 
devices. Secondary NMS that must be used by Ocean Wind include a big 
bubble curtain (BBC), a hydro-sound damper (HSD), or an AdBm Helmholz 
resonator (Elzinga et al., 2019). See Section 2.8 of the ITA 
application (Appendix B, Protected Species Mitigation and Monitoring 
Plan (PSMMP)) for more information on these (Ocean Wind, 2022b). If a 
single system is used, it must be a double big bubble curtain (DBBC). 
Other systems (e.g., noise mitigation screens) are not considered 
feasible for the Ocean Wind 1 project as they are in their early stages 
of development and field tests to evaluate performance and 
effectiveness have not been completed. Should the research and 
development phase of these newer systems demonstrate effectiveness, as 
part of adaptive management, Ocean Wind may submit data on the 
effectiveness of these systems and request approval from NMFS to use 
them during pile driving.
    If a bubble curtain is used (single or double), Orsted would be 
required to maintain the following operational parameters: The bubble 
curtain(s) must distribute air bubbles using a target air flow rate of 
at least 0.5 m\3\/(min*m), and must distribute bubbles around 100 
percent of the piling perimeter for the full depth of the water column. 
The lowest bubble ring must be in contact with the seafloor for the 
full circumference of the ring, and the weights attached to the bottom 
ring must ensure 100-percent seafloor contact; no parts of the ring or 
other objects should prevent full seafloor contact. Ocean Wind must 
require that construction contractors train personnel in the proper 
balancing of airflow to the bubble ring, and must require that 
construction contractors submit an inspection/performance report for 
approval by Ocean Wind within 72 hours following the performance test. 
Corrections to the attenuation device to meet the performance standards 
must occur prior to impact driving of monopiles. If Ocean Wind uses a 
noise mitigation device in addition to a BBC, similar quality control 
measures will be required.
    The literature presents a wide array of observed attenuation 
results for bubble curtains. The variability in attenuation levels is 
the result of variation in design, as well as differences in site 
conditions and difficulty in properly installing and operating in-water 
attenuation devices. D[auml]hne et al. (2017) found that single bubble 
curtains that reduce sound levels by 7 to 10 dB reduced the overall 
sound level by approximately 12 dB when combined as a double bubble 
curtain for 6 m steel monopiles in the North Sea. Bellmann et al. 
(2020) provide a review of the efficacy of using bubble curtains (both 
single and double) as noise abatement systems in the German Exclusive 
Economic Zone (EEZ) of the North and Baltic Seas. For 8 m diameter 
monopiles, single bubble curtains achieved an average of 11 dB 
broadband noise reduction (Bellmann et al., 2020). Ocean Wind would use 
a combination of two devices during impact pile driving.
    As previously discussed, the modeling of the sound fields for Ocean 
Wind's proposed activities demonstrated modeling assuming broadband 
attenuation levels of 0 dB, 6 dB, 10 dB, 15 dB, and 20 dB to gauge the 
effects on the ranges to threshold, given these various levels of sound 
attenuation. Ocean Wind anticipates, and NMFS agrees, that the use of a 
noise mitigation system will produce field measurements of the isopleth 
distances to the Level A harassment and Level B harassment thresholds 
that accord with those modeled assuming 10 dB of attenuation for both 
impact pile driving of monopiles and pin piles (refer back to the 
Estimated Take, Proposed Mitigation, and Proposed Monitoring and 
Reporting sections).
Use of PSOs and PAM Operators
    As described above, Ocean Wind would be required to use PSOs and 
acoustic PSOs (i.e., PAM operator) during all foundation installation 
activities. At minimum, four PSOs would be actively observing marine 
mammals before, during, and after pile driving. At least two PSOs would 
be

[[Page 64967]]

stationed on the pile driving vessel and at least two PSOS would be 
stationed on a secondary, PSO-dedicated vessel. The dedicated PSO 
vessel would be located at the outer edge of the 2 km (in the summer; 
2.5 km in the winter) large whale clearance zone (unless modified by 
NMFS based on SFV). These PSOs would be required to maintain watch at 
all times when impact pile driving of monopiles and/or pin piles is 
underway. Concurrently, at least one PAM operator would be actively 
monitoring for marine mammals before, during and after pile driving. 
More details on PSO and PAM operator requirements can be found in the 
Proposed Monitoring and Reporting section.
    Furthermore, all crew and personnel working on the Ocean Wind 1 
project would be required to maintain situational awareness of marine 
mammal presence (discussed further above) and would be required to 
report any sightings to the PSOs.
Clearance and Shutdown Zones
    NMFS is proposing to require the establishment of both clearance 
and shutdown zones during all impact pile driving of WTG and OSS 
foundation piles. Ocean Wind must use visual PSOs and PAM operators to 
monitor the area around each foundation pile before, during and after 
pile driving. Prior to the start of impact pile driving activities, 
Ocean Wind would clear the area of marine mammals, per Table 37, to 
minimize the potential for and degree of harassment.
    The purpose of ``clearance'' of a particular zone is to prevent 
potential instances of auditory injury, and more severe behavioral 
disturbance or, in the case of North Atlantic right whales, avoid and 
minimize behavioral disturbance to the maximum extent practicable (for 
North Atlantic right whales, the clearance and shutdown zones are set 
to any distance; see Table 37). By delaying the commencement of impact 
pile driving if marine mammals are detected within certain pre-defined 
distances from the pile being installed.
    PSOs would visually monitor for marine mammals for a minimum of 60 
minutes while PAM operators would review data from at least 24 hours 
prior to pile driving and actively monitor hydrophones for 60 minutes 
prior to pile driving. Prior to initiating soft-start procedures, all 
clearance zones must be visually confirmed to be free of marine mammals 
for 30 minutes immediately prior to starting a soft-start of pile 
driving. If a marine mammal is observed entering or within the relevant 
clearance zone prior to the initiation of impact pile driving 
activities, pile driving must be delayed and will not begin until 
either the marine mammal(s) has voluntarily left the specific clearance 
zones and have been visually or acoustically confirmed beyond that 
clearance zone, or, when specific time periods have elapsed with no 
further sightings or acoustic detections have occurred (i.e., 15 
minutes for small odontocetes and 30 minutes for all other marine 
mammal species).
    All distances to the perimeter of clearance zones are the radii 
from the center of the pile.
    Mitigation zones related to impact pile driving activities were 
created around two different seasonal periods to account for the 
different seasonal sound speed profiles that were used in JASCO's 
underwater sound propagation modeling, including summer (May through 
November) and winter (December) (Table 37). Ocean Wind would be 
required to implement these zones during foundation installation. While 
clearance and shutdowns would be monitored both visually and 
acoustically, NMFS is proposing to establish a minimum visibility zone 
close to the piles to ensure that marine mammals are detected prior to 
commencement of pile driving as visual and acoustic methods provide the 
most effective means of detection when combined (e.g., VanParijs et 
al., 2021). The minimum visibility zone would extend 1,650 m from the 
pile during summer months and 2,500 m during December (Table 37). These 
values correspond to the maximum LFC distance to Level A harassment 
thresholds assuming two monopiles are driven in a day. The entire 
minimum visibility zone must be visible (i.e., not obscured by dark, 
rain, fog, etc.) for a full 30 minutes immediately prior to commencing 
impact pile driving. For North Atlantic right whales, there is an 
additional requirement that the clearance zone may only be declared 
clear if no confirmed North Atlantic right whale acoustic detections 
(in addition to visual) have occurred during the 60-minute monitoring 
period. Any large whale sighted by a PSO or acoustically detected by a 
PAM operator that cannot be identified as a non-North Atlantic right 
whale must be treated as if it were a North Atlantic right whale.
    The purpose of a shutdown is to prevent a specific acute impact, 
such as auditory injury or severe behavioral disturbance of sensitive 
species, by halting the activity. If a marine mammal is observed 
entering or within the respective shutdown zone (Table 37) after impact 
pile driving has begun, the PSO will request a temporary cessation of 
impact pile driving. In situations when shutdown is called for but 
Ocean Wind determines shutdown is not practicable due to imminent risk 
of injury or loss of life to an individual, or risk of damage to a 
vessel that creates risk of injury or loss of life for individuals, 
reduced hammer energy must be implemented when the lead engineer 
determines it is practicable. Specifically, pile refusal or pile 
instability could result in not being able to shut down pile driving 
immediately. Pile refusal occurs when the pile driving sensors indicate 
the pile is approaching refusal, and a shut-down would lead to a stuck 
pile which then poses an imminent risk of injury or loss of life to an 
individual, or risk of damage to a vessel that creates risk for 
individuals. Pile instability occurs when the pile is unstable and 
unable to stay standing if the piling vessel were to ``let go.'' During 
these periods of instability, the lead engineer may determine a shut-
down is not feasible because the shut-down combined with impending 
weather conditions may require the piling vessel to ``let go'' which 
then poses an imminent risk of injury or loss of life to an individual, 
or risk of damage to a vessel that creates risk for individuals.
    After shutdown, impact pile driving may be reinitiated once all 
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, at which 
time the lowest hammer energy must be used to maintain stability. If 
pile driving has been shut down due to the presence of a North Atlantic 
right whale, pile driving may not restart until the North Atlantic 
right whale is no longer observed or 30 minutes has elapsed since the 
last detection. Upon re-starting pile driving, soft start protocols 
must be followed.
    The clearance and shutdown zone sizes vary by species and are shown 
in Table 37. Ocean Wind would be allowed to request modification to 
these zone sizes pending results of sound field verification (see 
Proposed Monitoring and Reporting section). Any changes to zone size 
would be part of adaptive management and would require NMFS' approval.

[[Page 64968]]

[GRAPHIC] [TIFF OMITTED] TP26OC22.065

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

Cofferdam Installation and Removal

Seasonal and Daily Restrictions
    Ocean Wind has proposed to construct the cofferdams from October to 
May within the first year of the effective period of the regulations 
and LOA, with some potential removal being necessary in April or May. 
However, NMFS is not requiring any seasonal restrictions in this 
proposed rule due to the relatively short duration of work (i.e., low 
associated impacts) and although North Atlantic right whales do migrate 
in coastal waters, they do not typically migrate very close to shore 
off of New Jersey and/or within New Jersey bays where work would be 
occurring. Given the distance to the Level B harassment isopleth is 
conservatively modeled at approximately 10 km, any exposure to 
vibratory pile driving during cofferdam installation would be at levels 
closer to the 120 dB Level B harassment threshold and not at louder 
source levels. Ocean Wind would be required; however, to conduct 
vibratory pile driving associated with cofferdam installation during 
daylight hours only.
Noise Abatement Systems
    Ocean Wind would install the cofferdams using vibratory pile 
driving. Given this and the short duration of work, NMFS is not 
proposing to require noise abatement systems during this activity.
Passive Acoustic Monitoring
    PAM would not be required during the installation or removal of 
temporary cofferdams.
Clearance and Shutdown Zones
    Ocean Wind would establish clearance and shutdown zones for 
vibratory pile driving activities associated with cofferdam 
installation (Table 38). Prior to the start of vibratory pile driving 
activities, at least two PSOs will monitor the clearance zone for 30 
minutes, continue monitoring during pile driving and for 30 minutes 
post pile driving. If a marine mammal is observed entering or is 
observed within the respective zones, piling will not

[[Page 64969]]

commence or will be delayed until the animal has exited the zone or a 
specific amount of time has elapsed since the last sighting (i.e., 30 
minutes for large whales and 15 minutes for dolphins, porpoises, and 
pinnipeds). If a marine mammal is observed entering or within the 
respective shutdown zone after vibratory pile driving has begun, the 
PSO will call for a temporary cessation of vibratory pile driving. 
Ocean Wind must immediately cease pile driving upon orders of the PSO 
unless shutdown is not practicable due to imminent risk of injury or 
loss of life to an individual, pile refusal, or pile instability. Pile 
driving must not restart until either the marine mammal(s) has 
voluntarily left the specific clearance zones and have been visually or 
acoustically confirmed beyond that clearance zone, or, when specific 
time periods have elapsed with no further sightings or acoustic 
detections have occurred (i.e., 15 minutes for small odontocetes and 30 
minutes for all other marine mammal species). Because a vibratory 
hammer can grip a pile without operating, pile instability should not 
be a concern and no caveat for re-starting pile driving due to pile 
instability is proposed.
BILLING CODE 3510-22-P

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[[Page 64971]]


[GRAPHIC] [TIFF OMITTED] TP26OC22.067

UXO/MEC Detonations

    While there would be no more than 10 detonations of UXOs/MECs, and 
these detonations are of very short duration (approximately 1 second), 
UXO/MEC detonations have a higher potential to cause mortality and 
injury than other activities proposed by Ocean Wind, and therefore have 
specific mitigation measures designed to minimize the likelihood of 
mortality and/or injury of marine mammals, including: (1) time of year/
seasonal restrictions; (2) time of day restrictions; (3) use of PSOs to 
visually observe for North Atlantic right whales; (4) use of PAM to 
acoustically detect North Atlantic right whales; (5) implementation of 
clearance zones; (6) use of noise mitigation technology; and, (7) post-
detonation monitoring visual and acoustic monitoring by PSOs and PAM 
operators.
As Low as Reasonably Practicable (ALARP) Approach
    For any UXOs/MECs that require removal, Ocean Wind would be 
required to implement the As Low as Reasonably Practicable (ALARP) 
process. This process would require Ocean Wind to undertake ``life-and-
shift'', i.e., physical removal and then lead up to in situ disposal, 
which would include low-order (deflagration) to high-order (detonation) 
methods of removal. Other approaches involve the cutting of the UXO/MEC 
to extract any explosive components. Implementing the ALARP approach 
would minimize potential impacts to marine mammals as UXOs/MECs would 
only be detonated as a last resort.
Seasonal and Daily Restrictions
    There is no specific time of year that UXOs/MECs would be detonated 
as detonation would be considered on a case-by-case basis. However, 
Ocean Wind would be limited to detonating UXOs/MECs only between May 
1st through October 31st to reduce impacts to North Atlantic right 
whales during peak migratory periods. Furthermore, UXO/MEC detonation 
would be limited to daylight hours only to reduce impacts on migrating 
species (such as North Atlantic right whales) and to ensure that visual 
PSOs can confirm appropriate clearance of the site prior to detonation 
events occurring.
Noise Abatement Systems
    Ocean Wind would be required to use a dual noise abatement system 
during all UXO/MEC detonation events, as detonations are determined to 
be necessary during the construction. Although the exact level of noise 
attenuation that can be achieved by noise abatement systems is unknown, 
available data from Bellmann et al. (2020) and Bellmann and Betke 
(2021) provide a reasonable expectation that the noise abatement 
systems will be able to achieve at least 10 dB attenuation. SFV would 
be required for all detonation events to verify the modeled distances, 
assuming 10 dB attenuation, are representative of the sound fields 
generated during detonations. This level of noise reduction is 
substantial in reducing impact zones for low-frequency cetaceans such 
as the North Atlantic right whale. For example, assuming the largest 
UXO/MEC charge weight (454 kg; E12) at a depth of 45 m, a 10 dB reduces 
the Level A harassment isopleth from 229 km\2\ to approximately 41 
km\2\ (Table 6-4 in the ITA application). The Level B harassment zone, 
given the same parameters, would decrease from 1,134 km\2\ to 437 km\2\ 
(Table 6-5 in the ITA application). However, and as previously stated 
in this document, Ocean Wind does not expect that all ten of the 
potential UXOs/MECs would constitute the largest charge weight; 
however, this weight was used as a conservative option in estimating 
exposures and take of marine mammals.
Use of PSOs and PAM Operators
    Clearing the zone would require use of at least six visual PSOs and 
one PAM operator on at least two dedicated PSO vessels. An aerial 
survey must also be performed prior to detonation and immediately after 
detonation to monitor for marine mammals. This zone must be fully 
visible for at least 60 minutes and all marine mammal(s) must be 
confirmed to be outside of the clearance zone for at least 30 minutes 
prior to detonation. PAM must also be conducted for at least 60 minutes 
and the zone must be acoustically cleared during this time.

[[Page 64972]]

Clearance Zones
    Prior to any detonation activities, Ocean Wind proposed to clear a 
zone encompassing a radius of 3.78 km around the detonation site using 
both visual and acoustic monitoring methods. This distance represents 
the modeled Level A (PTS) harassment threshold for low-frequency 
cetaceans (i.e., large whales) rounded up to the nearest km assuming a 
454 kg charge weight and use of a bubble curtain (Table 39). However, 
NMFS is proposing to require more protective zone sizes in order to 
ensure the least practicable adverse impact which includes minimizing 
the potential for TTS. It is currently not known how easily Ocean Wind 
will be able to identify UXO/MEC size in the field. For this reason, 
NMFS proposes to require Ocean Wind to clear a zone extending 10 km for 
large whales, 2 km for dolphins, 10 km for harbor porpoises, and 5 km 
for seals (Table 39). These zones are based on (but not equal to) the 
greatest TTS threshold distances from 454 kg charge at any site 
modeled. We note that harbor porpoise and seals are difficult to detect 
at great distances, but due to the UXO/MEC detonation time of year 
restrictions, their presence/abundance is likely to be relatively low. 
These zone sizes may be adjusted based on SFV and confirmation of UXO/
donor charge sizes. Moreover, if Ocean Wind indicates to NMFS they will 
be able to easily identify charge weights in the field, NMFS would 
develop clearance zones in the final rule for each charge weight 
analyzed. The zones would be based on Table 39 below.
    If a marine mammal is observed entering or within the clearance 
zone prior to denotation, the activity would be delayed. Only when the 
marine mammals have been confirmed to have voluntarily left the 
clearance zones and been visually confirmed to be beyond the clearance 
zone, or when 60 minutes have elapsed without any redetections for 
whales (including the North Atlantic right whale) or 15 minutes have 
elapsed without any redetections of delphinids, harbor porpoises, or 
seals may detonation continue.

[[Page 64973]]

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[[Page 64974]]


[GRAPHIC] [TIFF OMITTED] TP26OC22.069

HRG Surveys

    Ocean Wind would be required to implement several mitigation 
measures during all HRG survey activities using boomers, sparkers, and 
CHIRPs. The measures include shutdown, clearance, ramp-up, the use of 
PSOs, and vessel strike avoidance. There are no mitigation measures 
prescribed for sound sources greater than 180 kHz as these would be 
expected to fall outside of marine mammal hearing ranges and not result 
in harassment; however, all HRG survey vessels would be subject to the 
aforementioned vessel strike avoidance measures described earlier in 
this section. Furthermore, due to the frequency range and 
characteristics of some of the sound sources, shutdown, clearance, and 
ramp-up procedures are not proposed to be conducted during HRG surveys 
utilizing only non-impulsive sources (e.g., Ultra-Short BaseLine and 
other parametric sub-bottom profilers), with exception to usage of 
CHIRPS and other non-parametric sub-bottom profilers.
Seasonal and Daily Restrictions
    Given the potential impacts to marine mammals from exposure to HRG 
survey noise sources are relatively minor (e.g., limited to Level B 
harassment) and that the distances to the Level B harassment isopleth 
is very small (maximum distance is 141 m), NMFS is not proposing to 
implement any seasonal or time-of-day restrictions for HRG surveys.
    Although no temporal restrictions are proposed, NMFS would require 
Ocean Wind to deactivate acoustic sources during periods where no data 
is being collected, except as determined necessary for testing. Any 
unnecessary use of the acoustic source would be avoided.
Use of PSOs
    Ocean Wind would be required to employ qualified, NMFS-approved 
PSOs during site characterization surveys related to the Ocean Wind 1 
project. One PSO would be required to monitor during daylight hours and 
two would be required to monitor during nighttime hours, per vessel. 
Any PSO would have the authority to call for a delay or shutdown of 
survey activities. PSOs would begin visually monitoring 30 minutes 
prior to the initiation of the specified acoustic source (i.e., ramp-
up, if applicable) through 30 minutes after the use of the specified 
acoustic source has ceased. PSOs would be required to establish and 
monitor the appropriate clearance and shutdown zones. These zones would 
be based around the radial distance from the acoustic source and not 
from the vessel.
    Ocean Wind would be required to instruct all vessel personnel 
regarding the authority of the marine mammal monitoring team(s). For 
example, the vessel operator(s) would be required to immediately comply 
with any call for a shutdown by the Lead PSO. Any disagreement between 
the Lead PSO and the vessel operator would only be discussed after 
shutdown has occurred. All relevant vessel personnel and the marine 
mammal monitoring team would be required to participate in joint, 
onboard briefings that would be led by the vessel operator and the Lead 
PSO, prior to the beginning of survey activities. This would serve to 
ensure that all relevant responsibilities, communication procedures, 
marine mammal monitoring protocols, safety, operational procedures, and 
ITA requirements are clearly understood by all involved parties. The 
briefing would be repeated whenever new relevant personnel (e.g., new 
PSOs, acoustic source operators, relevant crew) join the survey 
operation before work commences.
Passive Acoustic Monitoring
    PAM would not be required during HRG surveys. While NMFS agrees 
that PAM can be an important tool for augmenting detection capabilities 
in certain circumstances, its utility in further reducing impacts 
during HRG survey activities is limited. We have provided a thorough 
description of our reasoning for not requiring PAM during HRG surveys 
in several Federal Register notices (e.g., 87 FR 40796, July 8, 2022; 
87 FR 52913, August 3, 2022; 87 FR 51356, August 22, 2022) which we 
adopt and those reasons continue to apply for this proposed action.
Clearance, Shutdown, and Vessel Separation Zones
    Ocean Wind would be required to implement a 30-minute clearance 
period of the clearance zones (Table 40) immediately prior to the 
commencing of the survey or when there is more than a 30 minute break 
in survey activities and PSOs are not actively monitoring. The 
clearance zones would be monitored by PSOs, using the appropriate 
visual technology. If a marine mammal is observed within a clearance 
zone during the clearance period, ramp-up (as described further on) 
would not be allowed to begin until the animal(s) has been observed 
voluntarily exiting its respective clearance zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small

[[Page 64975]]

odontocetes and seals, and 30 minutes for all other species). In any 
case when the clearance process has begun in conditions with good 
visibility, including via the use of night vision equipment (IR/thermal 
camera), and the Lead PSO has determined that the clearance zones are 
clear of marine mammals, survey operations would be allowed to commence 
(i.e., no delay is required) despite periods of inclement weather and/
or loss of daylight.
    Once the survey has commenced, Ocean Wind would be required to shut 
down boomers, sparkers, and CHIRPs if a marine mammal enters a 
respective shutdown zone (Table 40). In cases when the shutdown zones 
become obscured for brief periods due to inclement weather, survey 
operations would be allowed to continue (i.e., no shutdown is required) 
so long as no marine mammals have been detected. The use of boomers, 
and sparkers, and CHIRPS would not be allowed to commence or resume 
until the animal(s) has been confirmed to have left the Level B 
harassment zone or until a full 15 minutes (for small odontocetes and 
seals) or 30 minutes (for all other marine mammals) have elapsed with 
no further sighting. Any large whale sighted by a PSO within 1,000 m of 
the boomers, sparkers, and CHIRPs that cannot be identified as a non-
North Atlantic right whale would be treated as if it were a North 
Atlantic right whale.
    Ocean Wind would be required to immediately shut down any boomer, 
sparker, or CHIRP sources if a marine mammal(s) is sighted entering or 
within its respective shutdown zone:
     A 500 m zone for the North Atlantic right whale; and,
     A 100 m zone for all other marine mammal species (with 
exception of specific delphinid species).
    The shutdown requirement would be waived for small delphinids of 
the following genera: Delphinus, Stenella, Lagenorhynchus, and 
Tursiops. Specifically, if a delphinid from the specified genera is 
visually detected approaching the vessel (i.e., to bow-ride) or towed 
equipment, shutdown would not be required. Furthermore, if there is 
uncertainty regarding identification of a marine mammal species (i.e., 
whether the observed marine mammal(s) belongs to one of the delphinid 
genera for which shutdown is waived), the PSOs would use their best 
professional judgment in making the decision to call for a shutdown. 
Additionally, shutdown is required if a delphinid that belongs to a 
genus other than those specified is detected in the shutdown zone.
    If a boomer, sparker, or CHIRP is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
would be allowed to be activated again without ramp-up only if: (1) 
PSOs have maintained constant observation and (2) no additional 
detections of any marine mammal occurred within the respective shutdown 
zones. If a boomer, sparker, or CHIRP was shut down for a period longer 
than 30 minutes, then all clearance and ramp-up procedures would be 
required to be initiated, as previously described.

[[Page 64976]]

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[[Page 64977]]


[GRAPHIC] [TIFF OMITTED] TP26OC22.071

BILLING CODE 3510-22-C
    Ocean Wind to deactivate acoustic sources during periods where no 
data is being collected, except as determined necessary for testing. 
Any unnecessary use of the acoustic source would be avoided.
Ramp-Up
    At the start or restart of the use of boomers, sparkers, and/or 
CHIRPs, a ramp-up procedure would be required unless the equipment 
operates on a binary on/off switch. A ramp-up procedure, involving a 
gradual increase in source level output, is required at all times as 
part of the activation of the acoustic source when technically 
feasible. Operators should ramp up sources to half power for 5 minutes 
and then proceed to full power. Prior to a ramp-up procedure starting, 
the operator would have to notify a PSO of the planned start of the 
ramp-up. This notification time would not be less than 60 minutes prior 
to the planned ramp-up activities as all relevant PSOs would need the 
appropriate 30 minute period to monitor prior to the initiation of 
ramp-up. Prior to ramp-up beginning, the operator must receive 
confirmation from the PSO that the clearance zone is clear of any 
marine mammals. All ramp-ups would be scheduled to minimize the overall 
time spent with the source being activated. The ramp-up procedure must 
be used at the beginning of construction survey activities or after 
more than a 30-minute break in survey activities using the specified 
HRG equipment to provide additional protection to marine mammals in or 
near the survey area by allowing them to vacate the area prior to 
operation of survey equipment at full power.
    Ocean Wind would not initiate ramp-up until the clearance process 
has been completed (see Clearance and Shutdown Zones section above). 
Ramp-up activities would be delayed if a marine mammal(s) enters its 
respective shutdown zone. Ramp-up would only be reinitiated if the 
animal(s) has been observed exiting its respective shutdown zone or 
until additional time has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and seals, and 30 minutes for all other 
species).
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures would provide the 
means affecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to promulgate a rulemaking for an activity, section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA 
implementing regulations at 50 CFR 216.104 (a)(13) indicate that 
requests for authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area. Effective reporting is critical 
both to compliance as well as ensuring that the most value is obtained 
from the required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or

[[Page 64978]]

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.
    Separately, monitoring is also regularly used to support mitigation 
implementation, which is referred to as mitigation monitoring, and 
monitoring plans typically include measures that both support 
mitigation implementation and increase our understanding of the impacts 
of the activity on marine mammals.
    During the construction activities related to Ocean Wind 1, visual 
monitoring by NMFS-approved PSOs would be conducted before, during, and 
after impact pile driving; vibratory pile driving; any UXO/MEC 
detonations, and during HRG surveys, and PAM will be conducted during 
all impact pile driving and UXO/MEC detonations. Observations by PSOs 
will support the mitigation measures described above. Also, to increase 
understanding of the impacts of the activity on marine mammals, 
observers will record all incidents of marine mammal occurrence at any 
distance from the piling location, UXO/MEC detonation site, and during 
active HRG acoustic sources, and monitors will document all behaviors, 
and behavioral changes, in concert with distance from an acoustic 
source. The required monitoring is described below, beginning with PSO 
measures that are applicable to all activities or monitoring, followed 
by activity-specific monitoring requirements.

Protected Species Observer Requirements

    Ocean Wind would be required to collect sighting data and 
behavioral response data related to construction activities for marine 
mammal species observed in the region of the activity during the period 
in which an activity occurs using NMFS-approved visual and acoustic 
PSOs (see Proposed Mitigation section). All observers must be trained 
in marine mammal identification and behaviors and are required to have 
no other construction-related tasks while conducting monitoring. PSOs 
will monitor all clearance and shutdown zones prior to, during, and 
following impact pile driving; vibratory pile driving; UXO/MEC 
detonation; and during HRG surveys using boomers, sparkers, and CHIRPs 
(with monitoring durations specified further below). PSOs will also 
monitor the Level B harassment zones and will document any marine 
mammals observed within these zones, to the extent practicable (noting 
that some zones are too large to fully observe). Observers would be 
located at the best practicable vantage points on the pile driving 
vessel and, where required, dedicated PSO vessels or aerial platforms. 
Full details regarding all marine mammal monitoring must be included in 
relevant Plans (e.g., Pile Driving and Marine Mammal Monitoring Plan) 
that, under this proposed action, Ocean Wind would be required to 
submit to NMFS for approval at least 90 days in advance of the 
commencement of any construction activities.
    The following measures apply to all visual monitoring efforts:
    1. Monitoring must be conducted by qualified, trained PSOs who will 
be placed on the primary vessel relevant to the activity (e.g., pile 
driving vessel, UXO/MEC vessel, HRG survey vessel) and dedicated PSO 
vessels (e.g., additional UXO/MEC vessels) and must be in positions 
that allow for the best vantage point to monitor for marine mammals and 
implement the relevant shutdown procedures, when determine to be 
applicable;
    2. PSO must be independent, dedicated, and qualified, meaning that 
they must be employed by a third-party observer provider and must have 
no other tasks beyond to conduct observational effort, collect data, 
and communicate with an instruct the relevant vessel crew with regard 
to the presence of protected species and mitigation requirements;
    3. During all activities, PSOs would be located at the best vantage 
point(s) to provide adequate coverage of the entire visual shutdown and 
clearance zones, and as much of the Level B harassment zone as 
possible, while still maintaining a safe work environment;
    4. PSOs may not exceed 4 consecutive watch hours, must have a 
minimum 2-hour break between watches, and may not exceed a combined 
watch schedule of more than 12 hours in a single 24-hour period;
    5. During all observation periods related to pile driving (impact 
and vibratory), and UXO/MEC detonations, PSOs would be required to use 
high-magnification (25x), as well as standard handheld (7x), binoculars 
and the naked eyes to search continuously for marine mammals. During 
periods of low visibility (e.g., darkness, rain, fog, poor weather 
conditions, etc.), PSOs would be required to use alternative 
technologies (i.e., infrared or thermal cameras) to monitor the 
shutdown and clearance zones. At least one PSO located on the 
foundation pile driving vessel and UXO/MEC monitoring vessel would be 
equipped with ``Big Eye'' binoculars (e.g., 25 x 150; 2.7 view angle; 
individual ocular focus; height control) of appropriate quality. These 
would be mounted on a pedestal on the deck of the vessel at the most 
appropriate vantage point that would provide for the optimal sea 
surface observation, as well as safety of the PSO;
    6. PSOs should have the following minimum qualifications:
    a. Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with the ability to estimate the target size and distance. The use of 
binoculars is permitted and may be necessary to correctly identify the 
target(s);
    b. Ability to conduct field observations and collect data according 
to the assigned protocols;
    c. Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    d. Writing skills sufficient to document observations, including 
but not limited to: the number and species of marine mammals observed, 
the dates and times of when in-water construction activities were 
conducted, the dates and time when in-water construction activities 
were suspended to avoid potential incidental injury of marine mammals 
from construction noise within a defined shutdown zone, and marine 
mammal behavior;
    e. Ability to communicate orally, by radio, or in-person, with 
project personnel to provide real-time information on marine mammals 
observed in the area, as necessary.
    Observer teams employed by Ocean Wind, in satisfaction of the 
mitigation and monitoring requirements described herein, must meet the 
following additional requirements:
    1. At least one observer must have prior experience working as an 
observer;
    2. Other observers may substitute education (a degree in biological 
science or a related field) or training for experience;
    3. One observer will be designated as lead observer or monitoring 
coordinator (``Lead PSO''). This Lead PSO would have prior experience 
working as an observer in an offshore environment;
    4. At least two PSOs located on platforms (either vessel-based or 
aerial)

[[Page 64979]]

would be required to have a minimum of 90 days of at-sea experience 
working in those roles in an offshore environment and would be required 
to have no more than eighteen months elapsed since the conclusion of 
their last at-sea experience; and,
    5. All PSOs must be approved by NMFS. Ocean Wind would be required 
to submit the curriculum vitae (CV) of the initial set of PSOs 
necessary to commence the project to NMFS OPR (at [email protected]) 
for approval at least 60 days prior to the first day of construction 
activities. PSO resumes would need to include the dates of training and 
any prior NMFS approval, as well as the dates and description of their 
last PSO experience, and must be accompanied by information documenting 
their successful completion of an acceptable training course. NMFS 
would allow for 3 weeks to approve PSOs from the time that the 
necessary information is received by NMFS, after which any PSOs that 
meet the minimum requirements would automatically be considered 
approved.
    Some activities planned to be undertaken by Ocean Wind may require 
the use of PAM, which would necessitate the employment of at least one 
acoustic PSO (aka PAM operator on duty at any given time). PAM 
operators would be required to meet several of the specified 
requirements described above for PSOs, including: 2, 6b-e, 8, 10, and 
11. Furthermore, PAM operators would be required to complete a 
specialized training for operating the PAM systems and must demonstrate 
familiarity with the PAM system on which they will be working.
    PSOs would be able to act as both acoustic and visual observers 
during the construction of Ocean Wind 1 if the individual(s) 
demonstrates that they have had the required level and appropriate 
training and experience to perform each task. However, a single 
individual would not be allowed to concurrently act in both roles.
    Ocean Wind would be required to conduct briefings between 
construction supervisors, construction crews, and the PSO/PAM team 
prior to the start of all construction activities. When new personnel 
join the work, briefings must be held to explain all responsibilities, 
communication procedures, marine mammal monitoring protocols, 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.
    Ocean Wind's personnel and PSOs would also be required to use 
available sources of information on North Atlantic right whale presence 
to aid in monitoring efforts. This includes:
    1. Monitoring daily of the Right Whale Sightings Advisory System;
    2. Consulting of the WhaleAlert app; and,
    3. Monitoring of the Coast Guard's VHF Channel 16 throughout the 
day to receive notifications of any sightings and information 
associated with any Dynamic Management Areas, to plan construction 
activities and vessel routes, if practicable, to minimize the potential 
for co-occurrence with North Atlantic right whales.
    Additionally, whenever multiple project-associated vessels (of any 
size; e.g., construction survey, crew transfer) are operating 
concurrently, any visual observations of ESA-listed marine mammals must 
be communicated to PSOs and vessel captains associated with other 
vessels to increase situational awareness.
    The following are proposed monitoring and reporting measures that 
NMFS would require specific to each construction activity:

WTG and OSS Foundation Installation

    Ocean Wind would be required to implement the following monitoring 
procedures during all impact pile driving activities of monopiles and/
or pin piles related to WTG and OSS installation.
    Ocean Wind would be required to have a minimum of four PSOs 
actively observing marine mammals before, during, and after (specific 
times described below) the installation of foundation piles (monopiles 
and/or pin piles). At least four PSOs must be actively observing for 
marine mammals. At least two PSOs must be actively observing on the 
pile driving vessel while at least two PSOs are actively observing on a 
secondary, PSO-dedicated vessel. At least one active PSO on each 
platform must have a minimum of 90 days at-sea experience working in 
those roles in offshore environments with no more than 18 months 
elapsed since the conclusion of the at-sea experience. Concurrently, at 
least one acoustic PSO (i.e., passive acoustic monitoring (PAM) 
operator) must be actively monitoring for marine mammals before, during 
and after impact pile driving.
    All PSOs would need to be located at the best vantage point(s) on 
the impact pile driving vessel and dedicated PSO vessels in order to 
ensure 360[deg] visual coverage of the entire clearance and shutdown 
zones around the vessels, and as much of the Level B harassment zone as 
possible. During all observation periods associated with impact pile 
driving, PSOs would use high magnification (25x) binoculars, standard 
handheld (7x) binoculars, and the naked eye to search continuously for 
marine mammals. At least one PSO on the foundation pile driving vessel 
must be equipped with Big Eye binoculars (e.g., 25 x 150; 2.7 view 
angle; individual ocular focus; height control) of appropriate quality. 
These must be pedestal mounted on the deck at the most appropriate 
vantage point that provides for optimal sea surface observation and PSO 
safety. As described in the Proposed Mitigation section, if the minimum 
visibility zone cannot be visually monitored at all times using this or 
alternative equipment, pile driving operations may not commence or, if 
active, must shutdown. To supplement visual observers within the 
applicable shutdown zones, Ocean Wind would utilize at least one PAM 
operator before, during, and after pile installation. This PAM operator 
would assist the PSOs in ensuring full coverage of the clearance and 
shutdown zones. All on-duty visual PSOs will remain in contact with the 
PAM operator on-duty, who will monitor the PAM systems for acoustic 
detections of marine mammals in the area. The use of real-time PAM will 
require at least one PAM operator to monitor each system by viewing the 
data/data products that would be streamed in real-time or near real-
time to a computer workstation and monitor. In some cases, the PAM 
operator may be located onshore with the workstation and monitor or 
they may be located on a vessel. In either situation, PAM operators 
will maintain constant and clear communications with visual PSOs on 
duty regarding animal detections that would be approaching or found 
within the applicable zones related to impact pile driving. Ocean Wind 
would utilize PAM to acoustically monitor the clearance and shutdown 
zones, and would record all detections of marine mammals and estimated 
distance (noting whether they are in the Level A harassment or Level B 
harassment zones). To effectively utilize PAM, Ocean Wind would 
implement the following protocols:
     PAM operators would be stationed on at least one of the 
dedicated monitoring vessels in addition to the PSOs; or located 
remotely/onshore.
     PAM operators would have completed specialized training 
for operating PAM systems prior to the start of monitoring activities.
     All on-duty PSOs will be in contact with the PAM operator 
on-duty, who will monitor the PAM systems for

[[Page 64980]]

acoustic detections of marine mammals that are vocalizing in the area.
     For real-time PAM systems, at least one PAM operator will 
be designated to monitor each system by viewing data or data products 
that are streamed in real-time or near real-time to a computer 
workstation and monitor located on a Project vessel or onshore.
     The PAM operator will inform the Lead PSO on duty of 
animal detections approaching or within applicable ranges of interest 
to the pile driving activity via the data collection software system 
(i.e., Mysticetus or similar system) who will be responsible for 
requesting the designated crewmember to implement the necessary 
mitigation procedures.
     Acoustic monitoring during nighttime and low visibility 
conditions during the day will complement visual monitoring (e.g., PSOs 
and thermal cameras) and will cover an area of at least the Level B 
harassment zone around each foundation.
    All PSOs and PAM operators would be required to begin monitoring 60 
minutes prior to any impact pile driving, during, and after for 30 
minutes. As described in the Proposed Mitigation section, in addition 
to the clearance zones which can be both visually and acoustically 
cleared, PSOs would need to visually clear an area extending 1.65 km 
from the pile during summer months and 2.5 km during December prior to 
any impact pile driving activities occurring. During this period, 
marine mammals must be able to be visually detected within the entire 
minimum visibility zone for a full 30 minutes immediately prior to the 
start of impact pile driving. The impact pile driving of both monopiles 
and/or pin piles would only be able to commence when the minimum 
visibility zone is fully visible (e.g., not obscured by darkness, rain, 
fog, etc.) and the clearance zones are clear of marine mammals for at 
least 30 minutes, as determined by the Lead PSO, immediately prior to 
the initiation of impact pile driving.
    For North Atlantic right whales, any visual or acoustic detection 
would trigger a delay to the commencement of pile driving. In the event 
that a large whale is sighted or acoustically detected that cannot be 
confirmed as a non-North Atlantic right whale species, it must be 
treated as if it were a North Atlantic right whale. Following a 
shutdown, monopile and/or pin pile installation may not recommence 
until the minimum visibility zone is fully visible and clear of marine 
mammals for 30 minutes.

Cofferdam Installation and Removal

    Ocean Wind would be required to implement the following procedures 
during all vibratory pile driving activities on sheet piles associated 
with cofferdam installation and removal.
    Ocean Wind would be required to have a minimum of two PSOs on 
active duty during any installation and removal of the temporary 
cofferdams. These PSOs would always be located at the best vantage 
point(s) on the vibratory pile driving platform or secondary platform 
in the immediate vicinity of the vibratory pile driving platform, in 
order to ensure that appropriate visual coverage is available of the 
entire visual clearance zone and as much of the Level B harassment 
zone, as possible. NMFS would not require the use of PAM during 
vibratory pile driving activities related to the installation or 
removal of the temporary cofferdam.
    PSOs will monitor the clearance zone for the presence of marine 
mammals for 30 minutes before, throughout the installation of the sheet 
piles (and casing pipe, if installed), and for 30 minutes after all 
vibratory pile driving activities have ceased. Sheet pile or casing 
pipe installation may only commence when visual clearance zones are 
fully visible (e.g., not obscured by darkness, rain, fog, etc.) and 
clear of marine mammals, as determined by the Lead PSO, for at least 30 
minutes immediately prior to initiation of impact or vibratory pile 
driving.
    During all observation periods related to vibratory pile driving, 
PSOs must use high-magnification (25x), standard handheld (7x) 
binoculars, and the naked eye to search continuously for marine 
mammals. During periods of low visibility (e.g., darkness, rain, fog, 
etc.), PSOs must use alternative technology (i.e., IR/Thermal camera) 
to monitor clearance and shutdown zones.

UXO/MEC Detonations

    Ocean Wind would be required to implement the following procedures 
during all UXO/MEC detonations.
    Ocean Wind would be required to use a minimum of six PSOs and one 
PAM operator located on at least two dedicated PSO vessels. All PSOs 
and PAM operators would be required to begin monitoring 60 minutes 
prior to the UXO/MEC detonation event, during the event, and after for 
30 minutes. As UXO/MEC detonation would only occur during daylight 
hours, PSOs would only need to monitor during daylight hours (i.e., 
period between civil twilight rise and set).
    Ocean Wind would be required to utilize a PAM operator at least 60 
minutes prior to detonation events to monitor for marine mammals prior 
to and after detonation events. The PAM operator would be stationed on 
one of the dedicated monitoring vessels but may also be located 
remotely on-shore, but this is subject to approval by NMFS. When real-
time PAM is used, at least one PAM operator would be designated to 
monitor each system by viewing the data or data products that would be 
streamed in real-time or near real-time to a computer workstation and 
monitor, which would be located either on an Ocean Wind vessel or 
onshore. The PAM operator would work in coordination with the visual 
PSOs to ensure no detections of marine mammals prior to detonation 
occurring. The PAM operator would inform the Lead PSO on-duty of any 
animal detections approaching or within the applicable ranges of 
interest to the detonation activity via the data collection software 
(i.e., Mysticetus or a similar system), who would then be responsible 
for requesting the necessary mitigation procedures. The PAM operator 
would monitor to and past the clearance zone for large whales (10 km), 
as possible.
    Ocean Wind would also be required to perform aerial surveys, given 
the size of the UXO/MEC detonation zones, and at least two PSOs must 
also be located on the plane during aerial surveys that would occur 
before, during, and after UXO/detonation events. Aerial PSOs (which 
would be the same as the vessel-based PSOs) would continue to 
monitoring for marine mammals before, during, and after the detonation 
has occurred.
    PSOs will monitor the clearance zone for the presence of marine 
mammals for 60 minutes before, throughout the detonation event, and for 
30 minutes after. Detonation may only commence when visual clearance 
zones are fully visible (e.g., not obscured by darkness, rain, fog, 
etc.) and clear of marine mammals, as determined by the Lead PSO, for 
at least 60 minutes immediately prior to detonation occurring. For 
detonation zones (based on UXO/MEC charge weight) larger than 2 km, a 
secondary vessel would be used to monitor the detonation zone(s). In 
the event a secondary vessel is needed, two PSOs would be located at an 
appropriate vantage point on this vessel and would maintain watch 
during the same time period as the PSOs on the primary monitoring 
vessel. Ocean Wind would be required to ensure that the clearance zones 
are fully (100 percent) monitored prior to, during, and after 
detonation events.

[[Page 64981]]

    During all observation periods related to UXO/MEC detonation, PSOs 
must use high-magnification (25x), standard handheld (7x) binoculars, 
and the naked eye to search continuously for marine mammals. PSOs 
located on the UXO/MEC monitoring vessel would also be equipped with 
``Big Eye'' binoculars (e.g., 25 x 150; 2.7 view angle; individual 
ocular focus; height control). These would be mounted on a pedestal on 
the deck of the vessel at the most appropriate vantage point that would 
provide for the optimal sea surface observation, as well as safety of 
the PSO.

HRG Surveys

    Ocean Wind would be required to implement the following procedures 
during all HRG surveys.
    Between four and six PSOs would be present on every 24-hour survey 
vessel, and two to three PSOs would be present on every 12-hour survey 
vessel. Ocean Wind would be required to have at least one PSO on active 
duty during HRG surveys that are conducted during daylight hours (i.e., 
from 30 minutes prior to sunrise through 30 minutes following sunset) 
and at least two during HRG surveys that are conducted during nighttime 
hours. During all observation periods, PSOs must use standard handheld 
(7x) binoculars and the naked eye to search continuously for marine 
mammals. During periods of low visibility (e.g., darkness, rain, fog, 
etc.), PSOs must use alternative technology (i.e., IR/Thermal camera) 
to monitor clearance and shutdown zones, as necessary. NMFS does not 
require the use of PAM during HRG survey activities.
    All PSOs would begin monitoring 30 minutes prior to the activation 
of boomers, sparkers, or CHIRPs; throughout boomer, sparker, or CHIRP 
use; and for 30 minutes after the use of the acoustic sources has 
ceased.
    Given that multiple HRG vessels may be operating concurrently, any 
observations of marine mammals would be required to be communicated to 
PSOs on all nearby survey vessels.
    Ramp-up of boomers, sparkers, and CHIRPs would only commence when 
visual clearance zones are fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and clear of marine mammals, as determined 
by the Lead PSO, for at least 30 minutes immediately prior to 
initiation of survey activities utilizing the specified acoustic 
sources.
    During daylight hours when survey equipment is not operating, Ocean 
Wind would ensure that visual PSOs conduct, as rotation schedules 
allow, observations for comparison of sighting rates and behavior with 
and without use of the specified acoustic sources. Off-effort PSO 
monitoring must be reflected in the monthly PSO monitoring reports.

Marine Mammal Passive Acoustic Monitoring

    Ocean Wind would be required to utilize a PAM system to supplement 
visual monitoring for all monopile and pin pile installations, as well 
as during all UXO/MEC detonations. The PAM system must be monitored by 
a minimum of one PAM operator beginning at least 60 minutes prior to 
soft start of impact pile driving of monopiles and pin piles and UXO/
MEC detonation, at all times during monopile and pin pile installation 
and UXO/MEC detonation, and 30 minutes post-completion of impact pile 
installation and UXO/MEC detonation. PAM PSOs must immediately 
communicate all detections of marine mammals at any distance (i.e., not 
limited to the Level B harassment zones) to visual PSOs, including any 
determination regarding species identification, distance, and bearing 
and the degree of confidence in the determination.
    PAM operators may be on watch for a maximum of 4 consecutive hours 
followed by a break of at least 2 hours between watches. PAM operators 
must be required to demonstrate that they have completed specialized 
training for operating PAM systems, including identification of 
species-specific mysticete vocalizations. PSOs can act as PAM operators 
or visual PSOs (but not simultaneously) as long as they demonstrate 
that their training and experience are sufficient to perform each task.
    Some PAM systems may be used for real-time mitigation monitoring. 
This can utilize a variety of sources, but the most likely options, as 
proposed in Ocean Wind's PSMMP, will be discussed here.
    Towed PAM systems may be utilized for the Ocean Wind 1 project. 
These would consist of cabled hydrophone arrays that would be deployed 
from a vessel and then typically monitored from a tow vessel. Notably, 
several challenges exist when using a towed PAM system (i.e., the tow 
vessel may not be fit for the purpose as it may be towing other 
equipment, operating sound sources, or working in patterns not 
conducive to effective PAM). Furthermore, detection and localization 
capabilities for low-frequency cetacean calls (i.e., mysticete species) 
can be difficult in a commercial deployment setting. Alternatively, 
these systems have many positive benefits, as they are often low cost 
to operate, have high mobility, and are fairly easy and reliable to 
operate. These types of systems also work well in conjunction with 
visual monitoring efforts.
    Another PAM system being considered by Ocean Wind are mobile and 
hybrid PAM systems that are often autonomous and may utilize Autonomous 
Surface Vehicle (ASV) and radio-linked autonomous acoustic recorders.
    Ocean Wind plans to deploy PAM arrays specific for mitigation and 
monitoring of marine mammals outside of the shutdown zone to optimize 
the PAM system's capabilities to monitor for the presence of animals 
potentially entering these zones. The exact configuration and number of 
PAM systems would depend on the size of the zone(s) being monitored, 
the amount of noise expected in the area, and the characteristics of 
the signals being monitored. More closely spaced hydrophones would 
allow for more directionality, and perhaps, range to the vocalizing 
marine mammals; although, this approach would add additional costs and 
greater levels of complexity to the project. As larger baleen cetacean 
species (i.e., mysticetes), which would produce loud and lower-
frequency vocalizations, may be able to be heard with fewer hydrophones 
spaced at greater distances. However, smaller cetaceans (such as mid-
frequency delphinids; odontocetes) may necessitate more hydrophones and 
to be spaced closer together given the shorter range of the shorter, 
mid-frequency acoustic signals (e.g., whistles and echolocation 
clicks). As there are no ``perfect fit'' single optimal array 
configurations, these set-ups would need to be considered on a case-by-
case basis.
    A Passive Acoustic Monitoring Plan must be submitted to NMFS and 
BOEM for review and approval at least 180 days prior to the planned 
start of monopile and pin pile installations. PAM should follow 
standardized measurement, processing methods, reporting metrics, and 
metadata standards for offshore wind (Van Parijs et al., 2021). The 
plan must describe all proposed PAM equipment, procedures, and 
protocols. However, NMFS considers PAM usage for every project on a 
case-by-case basis and would continue discussions with Ocean Wind for 
choosing the PAM system that is determined to be appropriate for this 
proposed project.

[[Page 64982]]

Acoustic Monitoring for Sound Field and Harassment Isopleth 
Verification (SFV)

    During the installation of the first 3 monopile foundations, the 
installation of the first full jacket foundation (consisting of 16 
total pin piles), and during all UXO/MEC detonations, Ocean Wind must 
empirically determine source levels, the ranges to the isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds and the transmission loss coefficient(s). Ocean Wind may 
also estimate ranges to the Level A harassment and Level B harassment 
isopleths by extrapolating from in situ measurements conducted at 
several distances from the monopile and pin piles being driven and all 
UXOs/MECs being detonated. Ocean Wind must measure received levels at a 
standard distance of 750 m from the monopiles and pin piles and at both 
the presumed modeled Level A harassment and Level B harassment 
threshold ranges, or an alternative distance as agreed to in the SFV 
Plan.
    If acoustic field measurements collected during installation of the 
first or subsequent monopile, pin pile, and UXOs/MEC being detonated 
indicate ranges to the isopleths corresponding to Level A harassment 
and Level B harassment thresholds are greater than the ranges predicted 
by modeling (assuming 10-dB attenuation), Ocean Wind must implement 
additional noise mitigation measures prior to installing the next 
monopile or pin pile, or detonating any additional UXOs/MECs. Initial 
additional measures may include improving the efficacy of the 
implemented noise mitigation technology (e.g., BBC, DBBC) and/or 
modifying the piling schedule to reduce the sound source. Each 
sequential modification would be evaluated empirically by acoustic 
field measurements. In the event that field measurements indicate 
ranges to isopleths corresponding to Level A harassment and Level B 
harassment thresholds are greater than the ranges predicted by modeling 
(assuming 10 dB attenuation), NMFS may expand the relevant harassment, 
clearance, and shutdown zones and associated monitoring protocols. If 
harassment zones are expanded beyond an additional 1,500 m, additional 
PSOs would be deployed on additional platforms, with each observer 
responsible for maintaining watch in no more than 180[deg] and of an 
area with a radius no greater than 1,500 m.
    If acoustic measurements indicate that ranges to isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds are less than the ranges predicted by modeling (assuming 10 
dB attenuation), Ocean Wind may request a modification of the clearance 
and shutdown zones for impact pile driving of monopiles and pin piles 
and for detonation of all UXOs/MECs. For a modification request to be 
considered by NMFS, Ocean Wind would have had to conduct SFV on 3 or 
more monopiles and 1 entire jacket foundation (16 pin piles) and on all 
UXOs/MECs to verify that zone sizes are consistently smaller than 
predicted by modeling (assuming 10 dB attenuation). In addition, if a 
subsequent monopile and pin pile installation and location is selected 
that was not represented by previous three locations (i.e., substrate 
composition, water depth), SFV would be conducted. Furthermore, if a 
subsequent UXO/MEC charge weight is encountered and/or detonation 
location is selected that was not representative of the previous 
locations (i.e., substrate composition, water depth), SFV would also be 
required to be conducted. Upon receipt of an interim SFV report, NMFS 
may adjust zones (i.e., Level A harassment, Level B harassment, 
clearance, and/or shutdown) to reflect SFV measurements. The shutdown 
and clearance zones for pile driving would be equivalent to the 
measured range to the Level A harassment isopleths plus 10 percent 
(shutdown zone) and 20 percent (clearance zone), rounded up to the 
nearest 100 m for PSO clarity. However, the minimum visibility zone 
would not be decreased to a radius smaller than 1.65 km in the summer 
(and 2.5 km in the winter) from the pile. The shutdown zone for sei, 
fin, blue, and sperm whales (i.e., large whales) would not be reduced 
to a size less than 1.8 km in the summer and 2.5 km in the winter. The 
visual and PAM clearance and shutdown zones for North Atlantic right 
whales would not be decreased, regardless of acoustic field 
measurements. The Level B harassment zone would be equal to the largest 
measured range to the Level B harassment isopleth.
    Ocean Wind would be required to submit a SFV Plan at least 180 days 
prior to the planned start of impact pile driving or any detonation 
activities. The plan would describe how Ocean Wind would ensure that 
the first three monopile and pin pile installation sites and each UXO/
MEC detonation site selected for SFV are representative of the rest of 
the monopile and pin pile installation and UXO/MEC sites. In the case 
that these sites are not determined to be representative of all other 
monopile and pin pile installation sites and UXO/MEC detonation 
locations, Ocean Wind would include information on how additional sites 
would be selected for SFV. The plan would also include methodology for 
collecting, analyzing, and preparing SFV data for submission to NMFS. 
The plan would describe how the effectiveness of the sound attenuation 
methodology would be evaluated based on the results. Ocean Wind must 
also provide, as soon as they are available but no later than 48 hours 
after each installation, the initial results of the SFV measurements to 
NMFS in an interim report after each monopile for the first 3 piles and 
pin pile installation for the first full jacket foundation (16 pin 
piles).

Reporting

    Prior to any construction activities occurring, Ocean Wind would 
provide a report to NMFS (at [email protected] and 
[email protected]) that demonstrates that all required 
training for Ocean Wind personnel, which includes the vessel crews, 
vessel captains, PSOs, and PAM operators have completed all required 
trainings.
    NMFS would require standardized and frequent reporting from Ocean 
Wind during the life of the proposed regulations and LOA. All data 
collected relating to the Ocean Wind 1 project would be recorded using 
industry-standard software (e.g., Mysticetus or a similar software) 
installed on field laptops and/or tablets. Ocean Wind would be required 
to submit weekly, monthly and annual reports as described below. During 
activities requiring PSOs, the following information would be collected 
and reported related to the activity being conducted:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
     Water conditions (e.g., sea state, tide state, water 
depth);
     All marine mammal sightings, regardless of distance from 
the construction activity;
     Species (or lowest possible taxonomic level possible);
     Pace of the animal(s);
     Estimated number of animals (minimum/maximum/high/low/
best);

[[Page 64983]]

     Estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.);
     Description (i.e., as many distinguishing features as 
possible of each individual seen, including length, shape, color, 
pattern, scars or markings, shape and size of dorsal fin, shape of 
head, and blow characteristics);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling) and observed 
changes in behavior, including an assessment of behavioral responses 
thought to have resulted from the specific activity;
     Animal's closest distance and bearing from the pile being 
driven, UXO/MEC, or specified HRG equipment and estimated time entered 
or spent within the Level A harassment and/or Level B harassment zones;
     Construction activity at time of sighting (e.g., vibratory 
installation/removal, impact pile driving, UXO/MEC detonation, 
construction survey), use of any noise attenuation device(s), and 
specific phase of activity (e.g., ramp-up of HRG equipment, HRG 
acoustic source on/off, soft start for pile driving, active pile 
driving, post-UXO/MEC detonation, etc.);
     Description of any mitigation-related action implemented, 
or mitigation-related actions called for but not implemented, in 
response to the sighting (e.g., delay, shutdown, etc.) and time and 
location of the action;
     Other human activity in the area.
    For all real-time acoustic detections of marine mammals, the 
following must be recorded and included in weekly, monthly, annual, and 
final reports:
    a. Location of hydrophone (latitude & longitude; in Decimal 
Degrees) and site name;
    b. Bottom depth and depth of recording unit (in meters);
    c. Recorder (model & manufacturer) and platform type (i.e., bottom-
mounted, electric glider, etc.), and instrument ID of the hydrophone 
and recording platform (if applicable);
    d. Time zone for sound files and recorded date/times in data and 
metadata (in relation to UTC. i.e. EST time zone is UTC-5);
    e. Duration of recordings (start/end dates and times; in ISO 8601 
format, yyyy-mm-ddTHH:MM:SS.sssZ);
    f. Deployment/retrieval dates and times (in ISO 8601 format);
    g. Recording schedule (must be continuous);
    h. Hydrophone and recorder sensitivity (in dB re. 1 [mu]Pa);
    i. Calibration curve for each recorder;
    j. Bandwidth/sampling rate (in Hz);
    k. Sample bit-rate of recordings; and,
    l. Detection range of equipment for relevant frequency bands (in 
meters).
    For each detection the following information must be noted:
    a. Species identification (if possible);
    b. Call type and number of calls (if known);
    c. Temporal aspects of vocalization (date, time, duration, etc., 
date times in ISO 8601 format);
    d. Confidence of detection (detected, or possibly detected);
    e. Comparison with any concurrent visual sightings;
    f. Location and/or directionality of call (if determined) relative 
to acoustic recorder or construction activities;
    g. Location of recorder and construction activities at time of 
call;
    h. Name and version of detection or sound analysis software used, 
with protocol reference;
    i. Minimum and maximum frequencies viewed/monitored/used in 
detection (in Hz); and,
    j. Name of PAM operator(s) on duty.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on or in the vicinity of any impact or vibratory pile-driving 
vessel, dedicated PSO vessel, construction survey vessel, or during 
vessel transit, Ocean Wind must immediately report sighting information 
to the NMFS North Atlantic Right Whale Sighting Advisory System (866) 
755-6622, to the U.S. Coast Guard via channel 16, and through the 
WhaleAlert app (https://www.whalealert/org/) as soon as feasible but no 
longer than 24 hours after the sighting. Information reported must 
include, at a minimum: time of sighting, location, and number of North 
Atlantic right whales observed.
    If a North Atlantic right whale is detected via Ocean Wind PAM, the 
date, time, location (i.e., latitude and longitude of recorder) of the 
detection as well as the recording platform that had the detection must 
be reported to [email protected] as soon as feasible, but no 
longer than 24 hours after the detection. Full detection data and 
metadata must be submitted monthly on the 15th of every month for the 
previous month via the webform on the NMFS North Atlantic right whale 
Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates).
    Prior to initiation of project activities, Ocean Wind must 
demonstrate in a report submitted to NMFS (at [email protected] and 
[email protected]) that all required training for Ocean 
Wind personnel (including vessel crew and captains, and PSOs) has been 
completed.
    Weekly Report--Ocean Wind would be required to compile and submit 
weekly PSO and PAM reports to NMFS (at [email protected] and 
[email protected]) that document the daily start and 
stop of all pile driving, HRG survey, or UXO/MEC detonation activities, 
the start and stop of associated observation periods by PSOs, details 
on the deployment of PSOs, a record of all detections of marine 
mammals, any mitigation actions (or if mitigation actions could not be 
taken, provide reasons why), and details on the noise attenuation 
system(s) used and its performance. Weekly reports would be due on 
Wednesday for the previous week (Sunday-Saturday).
    Monthly Report--Ocean Wind would be required to compile and submit 
monthly reports that include a summary of all information in the weekly 
reports, including project activities carried out in the previous 
month, vessel transits (number, type of vessel, and route), number of 
piles installed, and all observations of marine mammals. Monthly 
reports would be due on the 15th of the month for the previous month. 
The report should note the location and date of any turbines that 
become operational.
    Annual Report--Ocean Wind would be required to submit an annual 
summary report to NMFS no later than 90 days following the end of a 
given calendar year describing, in detail, the following:
     Total number of marine mammals of each species/stock 
detected and how many were within designated Level A harassment and 
Level B harassment zones with comparison to authorized take of marine 
mammals for the associated activity type;
     Marine mammal detections and behavioral observations 
before, during, and after each activity;
     What mitigation measures were implemented (i.e., number of 
shutdowns or clearance zone delays, etc.) or, if no mitigative action 
was taken, why not;
     Operational details (i.e., days of impact and vibratory 
pile driving, days/amount of HRG survey effort, total number and charge 
weights related to UXO/MEC detonations, etc.);
     SFV/SSV results;
     PAM systems used;
     The results, effectiveness, and which noise abatement 
systems were used during relevant activities (i.e., impact pile 
driving, UXO/MEC detonation);

[[Page 64984]]

     Summarized information related to Situational Reporting; 
and,
     Any other important information relevant to the Ocean Wind 
1 project, including additional information that may be identified 
through the adaptive management process.
    A final annual report would be prepared and submitted within 30 
calendar days following receipt of any NMFS comments on the draft 
report. If no comments were received from NMFS within 60 calendar days 
of NMFS' receipt of the draft report, the report would be considered 
final.
    Five-year Report--By 90 days after the expiration of the rule, 
Ocean Wind would submit a final report that summarizes all of the data 
contained within the annual reports. A final five-year report would be 
prepared and submitted within 60 calendar days following receipt of any 
NMFS comments on the draft report. If no comments were received from 
NMFS within 60 calendar days of NMFS' receipt of the draft report, the 
report would be considered final.
Situational Reporting
    Specific situations encountered during the development of Ocean 
Wind 1 would require immediate reporting to be undertaken. These 
situations and the relevant procedures include:
     If a marine mammal observation occurs during vessel 
transit, the following information must be recorded:
    a. Time, date, and location;
    b. The vessel's activity, heading, and speed;
    c. Sea state, water depth, and visibility;
    d. Marine mammal identification to the best of the observer's 
ability (e.g., North Atlantic right whale, whale, dolphin, seal);
    e. Initial distance and bearing to marine mammal from vessel and 
closest point of approach; and,
    f. Any avoidance measures taken in response to the marine mammal 
sighting.
     If a sighting of a stranded, entangled, injured, or dead 
marine mammal occurs. In this situation, the sighting would be reported 
to OPR, the NMFS RWSAS hotline, and the NMFS Greater Atlantic Regional 
Fisheries Office (GARFO) Marine Mammal and Sea Turtle Stranding & 
Entanglement Hotline (866-755-6622), and the U.S. Coast Guard within 24 
hours. The report must include the following information:
    a. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    b. Species identification (if known) or description of the 
animal(s) involved;
    Condition of the animal(s) (including carcass condition if the 
animal is dead);
    c. Observed behaviors of the animal(s), if alive;
    d. If available, photographs or video footage of the animal(s); and
    e. General circumstances under which the animal was discovered.
     If a marine mammal is injured or killed as a result of 
Ocean Wind 1 project-related activities or vessels. In this case, the 
vessel captain or PSO on board shall immediately report the strike 
incident to the NMFS Office of Protected Resources and the GARFO within 
and no later than 24 hours. If activities related to the Ocean Wind 1 
project caused the injury or death of the animal, Ocean Wind would 
supply a vessel to assist with any salvage efforts, if requested by 
NMFS. The notification of the strike would include:
    a. Time, date, and location (latitude/longitude) of the incident;
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Vessel's speed during and leading up to the incident;
    d. Vessel's course/heading and what operations were being conducted 
(if applicable);
    e. Status of all sound sources in use;
    f. Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    g. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    h. Estimated size and length of animal that was struck;
    i. Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    j. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    k. Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    l. To the extent practicable, photographs or video footage of the 
animal(s).
Sound Monitoring Reporting
    Ocean Wind will be required to provide the initial results of SFV 
(including measurements) to NMFS in interim reports after each monopile 
installation and pin pile installation or the first three piles as soon 
as they are available, but no later than 48 hours after each 
installation. Ocean Wind would also have to provide interim reports 
after every UXO/MEC detonation as soon as they are available, but no 
later than 48 hours after each detonation. If SFV is required for 
subsequent monopile and pin pile installations, the same reporting 
timeline and data requirements apply. In addition to in situ measured 
ranges to the Level A harassment and Level B harassment isopleths, the 
acoustic monitoring report must include: SPLpeak, 
SPLrms that contains 90 percent of the acoustic energy, 
single strike sound exposure level, integration time for 
SPLrms, SELss, and 24-hour cumulative SEL 
extrapolated from measurements. All these levels must be reported in 
the form of median, mean, max, and minimum. The SEL and SPL power 
spectral density and one-third octave band levels (usually calculated 
as decidecade band levels) at the receiver locations should be 
reported. The acoustic monitoring report must also include a 
description of the hydrophones used, hydrophone and water depth, 
distance to the pile driven, and sediment type at the recording 
location. Final results of SFV must be submitted as soon as possible, 
but no later than within 90 days following completion of impact pile 
driving of monopiles and pin piles and detonations of up to 10 UXOs/
MECs.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' by mortality, serious injury, and Level A or Level B 
harassment, we consider other factors, such as the likely nature of any 
behavioral responses (e.g., intensity, duration), the context of any 
such responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the

[[Page 64985]]

1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the environmental baseline (e.g., as reflected in the 
regulatory status of the species, population size and growth rate where 
known, ongoing sources of human-caused mortality, or ambient noise 
levels).
    In the Estimated Take section, we identified the subset of 
potential effects that would be expected to rise to the level of take, 
and then identified the number of takes by Level A harassment and Level 
B harassment that we estimate are reasonably expected to occur based on 
the methods described. The impact that any given take would have is 
dependent on many case-specific factors that need to be considered in 
the negligible impact analysis (e.g., the context of behavioral 
exposures such as duration or intensity of a disturbance, the health of 
impacted animals, the status of a species that incurs fitness-level 
impacts to individuals, etc.). In this rule, we evaluate the likely 
impacts of the enumerated harassment takes that are proposed for 
authorization in the context of the specific circumstances surrounding 
these predicted takes. We also collectively evaluate this information, 
as well as other more taxa-specific information and mitigation measure 
effectiveness, in group-specific discussions that support our 
negligible impact conclusions for each stock. As also described above, 
no serious injury or mortality is expected or proposed for 
authorization for any species or stock.
    The Description of the Specified Activities section describes the 
specified activities proposed by Ocean Wind that may result in take of 
marine mammals and an estimated schedule for conducting those 
activities. Ocean Wind has provided a realistic construction schedule 
(e.g., Ocean Wind's schedule reflects the maximum number of piles they 
anticipate to be able to drive each month pile driving is authorized to 
occur); however, we recognize schedules may shift for a variety of 
reasons (e.g., weather or supply delays). However, the total amount of 
take would not exceed the maximum annual total in any given year and 5-
year totals indicated in Tables 36 and 35, respectively.
    We base our analysis and negligible impact determination (NID) on 
the maximum number of takes that would be reasonably expected to occur 
and are proposed to be authorized in the LOA, if issued, although, as 
stated before, the number of takes are only a part of the analysis, 
which includes extensive qualitative consideration of other contextual 
factors that influence the degree of impact of the takes on the 
affected individuals. To avoid repetition, we provide some general 
analysis in this Negligible Impact Analysis and Determination section 
that applies to all the species listed in Table 3, given that some of 
the anticipated effects of Ocean Wind's construction and operation 
activities on marine mammals are expected to be relatively similar in 
nature. Then, we subdivide into more detailed discussions for 
mysticetes, odontocetes, and pinnipeds which have broad life history 
traits that support an overarching discussion of some factors 
considered within the analysis for those groups (e.g., habitat-use 
patterns, high-level differences in feeding strategies).
    Last, we provide a negligible impact determinations for each 
species, providing species or stock-specific information or analysis, 
where appropriate, for example, for North Atlantic right whales given 
their population status. Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of Ocean Wind's proposed activities and then providing species- 
or stock-specific information allows us to avoid duplication while 
assuring that we have analyzed the effects of the specified activities 
on each affected species or stock. It is important to note that in the 
group or species sections, we base our negligible impact analysis on 
the maximum annual take that is predicted under the 5-year rule--
however, the majority of the impacts are associated with turbine and 
substations construction, which will occur largely within a 2-year 
period. The estimated take in the other years is expected to be notably 
less, which is reflected in the total take that would be allowable 
under the rule (see Tables 34, 35, and 36).

Behavioral Disturbance

    The amount of harassment Ocean Wind has requested, and NMFS is 
proposing to authorize, is based on exposure models that consider the 
outputs of an acoustic source and propagation model. Several 
conservative parameters and assumptions are ingrained into these models 
such as assuming forcing functions that consider direct contact with 
piles (i.e., no cushion allowances) and applying the highest monthly 
sound speed profile to all months within a given season, and the 
exposure model results do not reflect any mitigation measures (except 
for North Atlantic right whales) or avoidance response, and some of 
those results have been adjusted upward to consider sighting or group 
size data, where necessary. The resulting values for each stock were 
then used by Ocean Wind to request take. The only case in which 
mitigation measures (other than source level reduction via a noise 
abatement system) was considered is the potential for PTS (Level A 
harassment) of North Atlantic right whales (the model predicted a 
maximum of 1.08 PTS exposures but Ocean Wind did not request and we are 
not proposed to authorize Level A harassment of this species due, in 
large part, to the extended mitigation measures for this species). 
Therefore, for all species, the amount of take proposed to be 
authorized represents the maximum amount of Level A harassment and 
Level B harassment that is reasonably expected to occur.
    In general, NMFS anticipates that impacts on an individual that has 
been harassed are likely to be more intense when exposed to higher 
received levels and for longer a duration (though this is in no way a 
strictly linear relationship for behavioral effects throughout species, 
individuals, or circumstances) and less severe impacts result when 
exposed to lower received levels and for brief duration. However, there 
is also growing evidence of the importance of contextual factors such 
as distance from a source in predicting marine mammal behavioral 
response to sound--i.e., sounds of a similar level emanating from a 
more distant source have been shown to be less likely to evoke a 
response of equal magnitude (e.g., DeRuiter, 2012; Falcone et al., 
2017). As described in the Potential Effects to Marine Mammals and 
their Habitat section, the intensity and duration of any impact 
resulting from exposure to Ocean Wind's activities is dependent upon a 
number of contextual factors including, but not limited to, sound 
source frequencies, whether the sound source is moving towards the 
animal, hearing ranges of marine mammals, behavioral state at time of 
exposure, status of individual exposed (e.g., reproductive status, age 
class, health) and an individual's experience with similar sound 
sources. Ellison et al. (2012) and Moore and Barlow (2013), among 
others, emphasize the importance of context (e.g., behavioral state of 
the animals, distance from the sound source.) in evaluating behavioral 
responses of marine mammals to acoustic sources. Harassment to marine 
mammals may result in behavioral modifications of marine mammals (e.g., 
avoidance, temporary cessation of

[[Page 64986]]

foraging or communicating, changes in respiration or group dynamics, 
masking) or may result in auditory impacts such as hearing loss. In 
addition, some of the lower level physiological stress responses (e.g., 
orientation or startle response, change in respiration, change in heart 
rate) discussed previously would likely co-occur with the behavioral 
modifications, although these physiological responses are more 
difficult to detect and fewer data exist relating these responses to 
specific received levels of sound. Takes by Level B harassment, then, 
may have a stress-related physiological component as well; however, we 
would not expect Ocean Wind's activities to present conditions of long-
term and continuous exposure to noise leading to long-term 
physiological stress responses in marine mammals that could affect 
reproduction or survival.
    In the range of potential behavioral effects that might expect to 
be part of a response that qualifies as an instance of Level B 
harassment by behavioral disturbance (which by nature of the way it is 
modeled/counted, occurs within one day), the less severe end might 
include exposure to comparatively lower levels of a sound, at a 
detectably greater distance from the animal, for a few or several 
minutes. A less severe exposure of this nature could result in a 
behavioral response, such as avoiding an area that an animal would 
otherwise have chosen to move through or feed in for some amount of 
time or breaking off one or a few feeding bouts. More severe effects 
could occur if an animal gets close enough to the source to receive a 
comparatively higher level, is exposed continuously to one source for a 
longer time, or is exposed intermittently to different sources 
throughout a day. Such effects might result in an animal having a more 
severe flight response and leaving a larger area for a day or more or 
potentially losing feeding opportunities for a day. However, such 
severe behavioral effects are expected to occur infrequently.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral 
reactions to noise exposure, when taking place in a biologically 
important context, such as disruption of critical life functions, 
displacement, or avoidance of important habitat, are more likely to be 
significant if they last more than one day or recur on subsequent days 
(Southall et al., 2007) due to diel and lunar patterns in diving and 
foraging behaviors observed in many cetaceans (Baird et al., 2008, 
Barlow et al., 2020, Henderson et al., 2016, Schorr et al., 2014). It 
is important to note the water depth in the Ocean Wind 1 project area 
is shallow (15 to 36 m) and deep diving species, such as beaked whales 
and sperm whales, are not expected to be engaging in deep foraging 
dives when exposed to noise above NMFS harassment thresholds during the 
specified activities. Therefore, we do not anticipate impacts to deep 
foraging behavior to be impacted by the specified activities.
    It is also important to identify that the estimated number of takes 
does not necessarily equate to the number of individual animals Ocean 
Wind expects to harass (which is lower), but rather to the instances of 
take (i.e., exposures above the Level A harassment and Level B 
harassment threshold) that are anticipated to occur over the 5-year 
period. These instances may represent either brief exposures (e.g., 
seconds UXO/MEC detonation or seconds to minutes for HRG surveys) or, 
in some cases, longer durations of exposure within a day. Some 
individuals of a species may experience recurring instances of take 
over multiple days over the course of the year, while some members of a 
species or stock may experience one exposure as they move through an 
area or not experience take at all which means that the number of 
individuals taken is smaller than the total estimated takes. In short, 
for species that are more likely to be migrating through the area and/
or for which only a comparatively smaller number of takes are predicted 
(e.g., some of the mysticetes), it is more likely that each take 
represents a different individual, whereas for non-migrating species 
with larger amounts of predicted take, we expect that the total 
anticipated takes represent exposures of a smaller number of 
individuals of which some would be exposed multiple times.
    Impact pile driving is most likely to result in a higher magnitude 
and severity of behavioral disturbance than other activities (i.e., 
vibratory pile driving, UXO/MEC detonation and HRG surveys). Impact 
pile driving has higher source levels than vibratory pile driving and 
HRG sources. HRG surveys also produce much higher frequencies than pile 
driving resulting in minimal sound propagation. While UXO/MEC 
detonations may have higher source levels, impact pile driving is 
planned for longer durations (i.e., a maximum of 10 UXO/MEC detonations 
are planned, which result in only instantaneous exposures). While 
impact pile driving is anticipated to be most impactful for these 
reasons, impacts are minimized through implementation of mitigation 
measures, including soft-start, use of a sound attenuation system, and 
the implementation of clearance 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 
Level B harassment. Given sufficient notice through the use of soft-
start, marine mammals are expected to move away from a sound source 
that is annoying prior to becoming exposed to very loud noise levels. 
The requirement that pile driving can only commence when the full 
extent of all clearance zones are fully visible to visual PSOs would 
ensure a higher marine mammal detection capability, enabling a high 
rate of success in implementation of clearance zones. Furthermore, 
Ocean Wind would be required to utilize PAM during all clearance 
periods, during impact pile driving, and after pile driving has ended 
during the post-piling period. PAM has shown strength when used in 
conjunction with visual observations and increases the detection 
capabilities of marine mammals (Van Parijs et al., 2021). These 
measures also apply to UXO/MEC detonation(s) which also have the 
potential to elicit more severe behavioral reactions in the unlikely 
event that an animal is relatively close to the explosion in the 
instance that it occurs; hence, severity of behavioral responses are 
expected to be lower than without mitigation.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if 
some smaller subset of the takes are in the form of a longer (several 
hours or a day) and more severe response, if they are not expected to 
be repeated over sequential days, impacts to individual fitness are not 
anticipated. Nearly all studies and experts agree that infrequent 
exposures of a single day or less are unlikely to impact an 
individual's overall energy budget (Farmer et al., 2018; Harris et al., 
2017; King et al., 2015; NAS 2017; New et al., 2014; Southall et al., 
2007; Villegas-Amtmann et al., 2015).

Temporary Threshold Shift (TTS)

    TTS is one form of Level B harassment that marine mammals may incur 
through exposure to Ocean Wind's activities and, as described earlier, 
the proposed takes by Level B harassment may represent takes in the 
form of behavioral disturbance, TTS, or both. As discussed in the 
Potential Effects to Marine Mammals and their Habitat section, in 
general, TTS can last from a few minutes to days, be of varying degree, 
and occur across different frequency bandwidths, all of which determine 
the severity of the impacts on

[[Page 64987]]

the affected individual, which can range from minor to more severe. 
Impact and vibratory pile driving generate sounds in the lower 
frequency ranges (with most of the energy below 1-2 kHz but with a 
small amount energy ranging up to 20 kHz); therefore, in general and 
all else being equal, we would anticipate the potential for TTS is 
higher in low frequency cetaceans (i.e., mysticetes) than other marine 
mammal hearing groups and would be more likely to occur in frequency 
bands in which they communicate. However, we would not expect the TTS 
to span the entire communication or hearing range of any species given 
the frequencies produced by pile driving do not span entire hearing 
ranges for any particular species. Additionally, though the frequency 
range of TTS that marine mammals might sustain would overlap with some 
of the frequency ranges of their vocalization types, the frequency 
range of TTS from Ocean Wind's pile driving and UXO/MEC detonation 
activities would not usually span the entire frequency range of one 
vocalization type, much less span all types of vocalizations or other 
critical auditory cues for any given species. However, the mitigation 
measures proposed by Ocean Wind and proposed by NMFS, further reduce 
the potential for TTS in mysticetes.
    Generally, both the degree of TTS and the duration of TTS would be 
greater if the marine mammal is exposed to a higher level of energy 
(which would occur when the peak dB level is higher or the duration is 
longer). The thresholds for the onset of TTS was discussed previously 
in this rule (refer back to Table 6). However, source level alone is 
not a predictor of TTS. An animal would have to approach closer to the 
source or remain in the vicinity of the sound source appreciably longer 
to increase the received SEL, which would be difficult considering the 
proposed mitigation and the nominal speed of receiver relative to the 
stationary sources such as impact pile driving. The recovery time of 
TTS is also of importance when considering the potential impacts from 
TTS. In TTS laboratory studies (as discussed in the Potential Effects 
to Marine Mammals and their Habitat section), some using exposures of 
almost an hour in duration or up to 217 SEL, almost all individuals 
recovered within 1 day (or less, often in minutes) and we note that 
while the pile driving activities last for hours a day, it is unlikely 
that most marine mammals would stay in the close vicinity of the source 
long enough to incur more severe TTS. UXO/MEC detonation also has the 
potential to result in TTS; however, given the duration of exposure is 
extremely short (milliseconds), the degree of TTS (i.e., the amount of 
dB shift) is expected to be small and TTS duration is expected to be 
short (minutes to hours). Overall, given the small number of times that 
any individual might incur TTS, the low degree of TTS and the short 
anticipated duration, and the unlikely scenario that any TTS overlapped 
the entirety of a critical hearing range, it is unlikely that TTS of 
the nature expected to result from Ocean Wind's activities would result 
in behavioral changes or other impacts that would impact any 
individual's (of any hearing sensitivity) reproduction or survival.

Permanent Threshold Shift

    Ocean Wind has requested, and NMFS proposed to authorize, a very 
small amount of take by PTS to some marine mammal individuals. The 
numbers of proposed takes by Level A harassment are relatively low for 
all marine mammal stocks and species: sei whales (1 take), fin whales 
(4 takes), minke whales (22 takes), humpback whales (6 takes), the 
coastal stock of bottlenose dolphins (11 takes), harbor porpoises (79 
takes), gray seals (35 takes), and harbor seals (48 takes). The only 
activities from which we anticipate PTS may occur is from exposure to 
impact pile driving and UXO/MEC detonations, which produce sounds that 
are both impulsive and primarily concentrated in the lower frequency 
ranges (below 1 kHz) (David, 2006; Krumpel et al., 2021).
    There are no PTS data on cetaceans and only one instance of PTS 
being induced in an older harbor seals (Reichmuth et al., 2019); 
however, available data (of mid-frequency hearing specialists exposed 
to mid- or high-frequency sounds (Southall et al., 2007; NMFS 2018; 
Southall et al., 2019) suggest that most threshold shifts occur in the 
frequency range of the source up to one octave higher than the source 
(with the maximum TTS at \1/2\ octave above). We would anticipate a 
similar result for PTS. Further, no more than a small degree of PTS is 
expected to be associated with any of the Level A harassment take 
incurred, given it is unlikely that animals would stay in the close 
vicinity of a source for a duration long enough to produce more than a 
small degree of PTS.
    PTS would consist of minor degradation of hearing capabilities 
occurring predominantly at frequencies one-half to one octave above the 
frequency of the energy produced by pile driving or instantaneous UXO/
MEC detonation (i.e., the low-frequency region below 2 kHz) (Cody and 
Johnstone, 1981; McFadden, 1986; Finneran, 2015), not severe hearing 
impairment. If hearing impairment occurs from either impact pile 
driving or UXO/MEC detonation, it is most likely that the affected 
animal would lose a few decibels in its hearing sensitivity, which in 
most cases is not likely to meaningfully affect its ability to forage 
and communicate with conspecifics. However, given sufficient notice 
through use of soft-start prior to the full hammer energy that would be 
used during impact pile driving, 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. 
Furthermore, while up to 10 UXOs/MECs have been estimated to be 
detonated, the exposure analysis assumed the worst-case scenario of 
assuming that all of the UXOs/MECs found would consist of the largest 
charge weight of UXO/MEC (E12; 454 kg). It is highly unlikely that all 
charges would be this size, which would reduce the take estimate. 
Furthermore, Ocean Wind plans to implement sound attenuation during all 
UXO/MEC detonations that would further be expected to reduce take of 
marine mammals.

Auditory Masking or Communication Impairment

    The ultimate potential impacts of masking on an individual are 
similar to those discussed for TTS (e.g., decreased ability to 
communicate, forage effectively, or detect predators), but an important 
difference is that masking only occurs during the time of the signal, 
versus TTS, which continues beyond the duration of the signal. Also, 
though, masking can result from the sum of exposure to multiple 
signals, none of which might individually cause TTS. Fundamentally, 
masking is referred to as a chronic effect because one of the key 
potential harmful components of masking is its duration--the fact that 
an animal would have reduced ability to hear or interpret critical cues 
becomes much more likely to cause a problem the longer it is occurring. 
Also inherent in the concept of masking is the fact that the potential 
for the effect is only present during the times that the animal and the 
source are in close enough proximity for the effect to occur (and 
further, this time period would need to coincide with a time that the 
animal was utilizing sounds at the masked frequency). As our analysis 
has indicated, we expect that impact pile driving foundations have the 
greatest

[[Page 64988]]

potential to mask marine mammal signals and this pile driving may occur 
for several, albeit intermittent, hours per day. Masking is 
fundamentally more of a concern at lower frequencies (which are pile 
driving dominant frequencies), because low frequency signals propagate 
significantly further than higher frequencies and because they are more 
likely to overlap both the narrower low frequency calls of mysticetes, 
as well as many non-communication cues such as fish and invertebrate 
prey, and geologic sounds that inform navigation. However, the area in 
which masking would occur for all marine mammal species and stocks 
(e.g., predominantly in the vicinity of the foundation pile being 
driven) is small relative to the extent of habitat used by each species 
and stock. In addition, the waters off of New Jersey are not known to 
have any particular foraging or reproductive significance for any 
marine mammals. In summary, the nature of Ocean Wind's activities 
paired with habitat use by marine mammals do not support the likelihood 
that the level of masking occurring would have the potential to affect 
reproductive success or survival.

Impacts on Habitat and Prey

    Construction activities may result in fish and invertebrate 
mortality or injury very close to pile driving, HRG surveys, or UXO/MEC 
detonation and may cause some fish to leave the area of disturbance. It 
is anticipated any mortality or injury would be limited to a very small 
subset of available prey and the implementation of mitigation measures 
such as the use of bubble curtains during pile driving and UXO/MEC 
detonation would further limit the degree of impact (and noting UXO/MEC 
detonation would be limited to 10 events over 5 years). Behavioral 
changes in prey in response to construction activities could 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the relatively 
small area of the habitat that may be affected at any given time (e.g., 
around a pile being driven) and that there are no known areas of 
foraging importance to marine mammals in the action area, the impacts 
to marine mammal habitat are not expected to cause significant or long-
term negative consequences.
    Cable presence and operation are not anticipated to impact marine 
mammal habitat as these would be buried and any electromagnetic fields 
emanating from the cables are not anticipated to result in consequences 
that would impact marine mammals prey to the extent they would be 
unavailable for consumption and marine mammal habitat does not occur 
within the substrate where cables would be present.
    The presence and operation of turbines within the lease area could 
have longer-term impacts on marine mammal habitat as the project would 
result in the presence of the structures in the Atlantic Ocean where 
marine mammals occur for 30+ years. The presence and operation of 
structures such as wind turbines are, in general, likely to result in 
local and broader oceanographic effects in the marine environment, and 
may disrupt marine mammal prey such as dense aggregations and 
distribution of zooplankton through altering the strength of tidal 
currents and associated fronts, changes in stratification, primary 
production, the degree of mixing, and stratification in the water 
column (Chen et al., 2021, Johnson et al., 2021; Christiansen et al., 
2022; Dorrell et al., 2022). However, the scale of impacts is difficult 
to predict and may vary from hundreds of meters for local individual 
turbine impacts (Schultze et al., 2020) to large-scale dipoles of 
surface elevation changes stretching hundreds of kilometers 
(Christiansen et al., 2022). In 2022, NMFS hosted a workshop to better 
understand the current scientific knowledge and data gaps around the 
potential long-term impacts of offshore wind farm operations in the 
Atlantic Ocean. The report from that workshop is pending and NMFS will 
consider its findings in development of the final rule for this action. 
As discussed in the Potential Effects to Marine Mammals and Their 
Habitat section, Ocean Wind 1 is in an area of the MAB that experiences 
coastal upwelling and is on the inshore edge of the Cold Pool 
footprint. While there is some chance of local oceanographic impacts 
from wind farm presence and operation, meaningful ocean impacts 
relative to stratification and the Cold Pool that would affect marine 
mammal habitat and prey are unlikely. This rule considers the presence 
of the turbines scheduled to be fully constructed through the course of 
the rule and the likelihood that some subset of the turbines 
(approximately 68) will likely become operational in 2024 with the last 
30 being installed and operational between 2024 and 2025. Further, this 
area does not support dense congregations of zooplankton (baleen whale 
prey) that could be impacted if long-term oceanographic changes 
occurred. For these reasons, we predict only small habitat changes from 
wind farm operation and if oceanographic features are affected by wind 
farm operation, the impact on marine mammal habitat and their prey is 
likely to be insignificant.

Mitigation To Reduce Impacts on All Species

    This proposed rulemaking includes a variety of mitigation measures 
designed to minimize impacts on all marine mammals, with a focus on 
North Atlantic right whales (latter described in more detail below). 
For impact pile driving of foundation piles, eight overarching 
mitigation measures are proposed, which are intended to reduce both the 
number and intensity of marine mammal takes: (1) time of year/seasonal 
restrictions; (2) use of multiple PSOs to visually observe for marine 
mammals (with any detection within designated zones triggering delay or 
shutdown); (3) use of PAM to acoustically detect marine mammals, with a 
focus on detecting baleen whales (with any detection within designated 
zones triggering delay or shutdown); (4) implementation of clearance 
zones; (5) implementation of shutdown zones; (6) use of soft-start; (7) 
use of noise abatement technology; and, (8) maintaining situational 
awareness of marine mammal presence through the requirement that any 
marine mammal sighting(s) by Ocean Wind project personnel must be 
reported to PSOs.
    When monopile or jacket foundation installation does occur, Ocean 
Wind is committed to reducing the noise levels generated by impact pile 
driving to the lowest levels practicable and ensuring that they do not 
exceed a noise footprint above that which was modeled, assuming a 10 dB 
attenuation. Use of a soft-start will allow animals to move away from 
(i.e., avoid) the sound source prior to the elevation of the hammer 
energy to the level maximally needed to install the pile (Ocean Wind 
will not use a hammer energy greater than necessary to install piles). 
Clearance zone and shutdown zone implementation, required when marine 
mammals are within given distances associated with certain impact 
thresholds, will reduce the magnitude and severity of marine mammal 
take.
    To reduce the daily amount of time the area may be ensonified (and 
thereby decrease daily exposure risk), Ocean Wind will drive no more 
than two monopiles per day. Ocean Wind indicates the need for up to 
nine hours of impact pile driving installation activities per each 
monopile; however, this entire period is unlikely to consist of active 
hammering as some time would be needed to move vessels and equipment to 
set up additional

[[Page 64989]]

monopiles (assuming a full monopile foundation build-out). 
Specifically, the application notes that ``installation of a single 
pile at a minimum would involve a 1-hour pre-clearance period, 4 hours 
of piling, and 4 hours to move to the next piling location where the 
process would begin again.'' Based on this, at a rate of two monopiles 
with only 4 hours of active impact hammering being necessary, the 
physical installation time occurring daily would only consist of 8 
hours instead of 18 hours, as that full period would also consist of 
other activities that are not likely to harass marine mammals (e.g., 
vessel transit, equipment set-up, pre-clearance monitoring by visual 
PSOs and PAM operators) outside of active impact driving.
    NMFS is also proposing to require Ocean Wind to apply a noise 
attenuation device (likely a big bubble curtain and another technology, 
such as a hydro-damper) to ensure sound generated from the project does 
not exceed that modeled (assuming 10 dB reduction) at given ranges to 
harassment isopleths, and to minimize noise levels to the lowest level 
practicable. As an example used previously in the CVOW pilot project, 
double big bubble curtains are successfully and widely applied across 
European wind development efforts, and are known to reduce noise levels 
more than a single big bubble curtain alone (e.g., see Bellman et al., 
2020). Further, NMFS will be reviewing the operational reports provided 
by Ocean Wind to ensure that deployments are successful (e.g., the 
maximum air flow rate is being used during pile driving).

Mysticetes (North Atlantic Right Whale, Blue Whale, Fin Whale, Sei 
Whale, Minke Whale, and Humpback Whale)

    Six mysticete species of cetaceans (comprising six stocks) are 
proposed to be taken by harassment. These stocks all use the waters off 
of New Jersey as a migratory corridor (recognizing that not all animals 
within a given stock migrate every year), and while some behavior such 
as foraging may occur sporadically, none of the six species are known 
to specifically congregate in or around the project area for feeding or 
reproductive behaviors.
    Behavioral data on mysticete reactions to pile driving noise is 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying in, which is less likely 
for mysticetes in this area), disruption of foraging activities (if 
they are occurring in the area, which is less likely for mysticetes in 
the project area), local masking around the source, associated stress 
responses, and impacts to prey, as well as TTS or PTS in some cases.
    Mysticetes encountered in the Ocean Wind project area would 
primarily be migrating through the area, and there are no known areas 
where any mysticete species concentrate for feeding or reproductive 
behaviors in or in the vicinity of the project area. If foraging events 
did occur, these would likely be sporadic and not focused specifically 
in the area. In any case, it is unlikely dedicated foraging activities 
in this area would occur, much less consistently during the same hours 
where impact pile driving is planned to occur. While we have 
acknowledged above that mortality, hearing impairment, or displacement 
of mysticete prey species may result locally from impact pile driving 
or UXO/MEC detonation, given the broad availability of prey species in 
the area and the low likelihood of mysticete foraging in the area, any 
impacts from pile driving on mysticete foraging would be expected to be 
minor. Further, given the fact that mysticete species are expected to 
predominantly be migrating through, and the relatively low Level B 
harassment take numbers indicated in Table 35 (between 4 and 118 for 
the 6 species), it is likely that most of the proposed takes represent 
an exposure of a different individual, which means that the behavioral 
impacts to mysticetes are limited to behavioral disturbance occurring 
on one or two days within a year--an amount that would not be expected 
to impact reproduction or survival.
    Neither North Atlantic right whales nor blue whales are expected or 
authorized to incur PTS, and the other mysticetes have 1, 4, 6, and 22 
Level A harassment takes for sei, fin, humpback, and minke whales, 
respectively. As described previously, PTS for mysticetes from impact 
pile driving may overlap frequencies used for communication, 
navigation, or detecting prey, however, given the nature and duration 
of the activity, the mitigation measures, and likely avoidance 
behavior, any PTS is expected to be of a small degree, would be limited 
to frequencies where pile driving noise is concentrated (i.e., only a 
small subset of their hearing range) and would not be expected to 
impact reproductive success or survival.
North Atlantic Right Whales
    North Atlantic right whales are listed as endangered under the ESA 
and, as described in the Effects to Marine Mammals and Their Habitat 
section, are threatened by a low population abundance, higher than 
average mortality rates, and lower than average reproductive rates. 
Recent studies have reported individuals showing poor health or high 
stress levels (Corkeron et al., 2017) which has further implications on 
reproductive success (Christiansen et al., 2020; Stewart et al., 2021; 
Stewart et al., 2022). Given this, the status of the North Atlantic 
right whale population is of heightened concern and, therefore, merits 
additional analysis and consideration. NMFS proposes to authorize a 
maximum of seven takes of North Atlantic right whales, by Level B 
harassment only, within any given year with no more than 14 takes 
incidental to all construction activities are proposed to be authorized 
over the 5-year effectiveness of this proposed rule.
    Given their migratory behavior in the project area, we anticipate 
individual whales would be swimming through the area and it is likely 
that the number of annual exposures represents individual whales as we 
do not anticipate whales to linger in the area. Therefore, we 
anticipate these takes to occur to seven individuals in a given year 
(i.e., seven individuals incurring a behavioral disturbance on one day 
within a year). Across all years, while it is possible an animal 
migrating through could have been exposed during a previous year, the 
low amount of take proposed to be authorized during the 5-year period 
of the proposed rule makes this scenario also unlikely. However, if an 
individual were to be exposed during a subsequent year, the impact of 
that exposure is likely independent of the previous exposure given the 
duration between exposures. No mortality, serious injury, or Level A 
harassment of North Atlantic right whales is anticipated or proposed to 
be authorized.
    North Atlantic right whales are presently experiencing an ongoing 
UME (beginning in June 2017). Preliminary findings support human 
interactions, specifically vessel strikes and entanglements, as the 
cause of death for the majority of North Atlantic right whales. Given 
the current status of the North Atlantic right whale, the loss of even 
one individual could significantly impact the population. No mortality, 
serious injury, or injury of North

[[Page 64990]]

Atlantic right whales as a result of the project is expected or 
proposed to be authorized. Any disturbance to North Atlantic right 
whales due to Ocean Wind's activities is expected to result in 
temporary avoidance of the immediate area of construction. As no 
injury, serious injury, or mortality is expected or authorized, and 
Level B harassment of North Atlantic right whales will be reduced to 
the level of least practicable adverse impact through use of mitigation 
measures, the authorized number of takes of North Atlantic right whales 
would not exacerbate or compound the effects of the ongoing UME in any 
way.
    As described in the general Mysticete section above, impact pile 
driving (assuming WTG monopile and OSS pin pile build-out) has the 
potential to result in the highest amount of annual take (5 Level B 
harassment takes) and is of greatest concern given loud source levels. 
The potential types, severity, and magnitude of impacts is also 
anticipated to mirror that described in the general mysticete section 
above, including avoidance (the most likely outcome), changes in 
foraging or vocalization behavior, masking, a small amount of TTS, and 
temporary physiological impacts (e.g., change in respiration, change in 
heart rate). Importantly, the effects of the activities proposed by 
Ocean Wind are sufficiently low-level and localized to specific areas 
as to not meaningfully impact important behaviors such as migratory 
behavior of North Atlantic right whales--their primary behavior within 
the project area. As described above, only seven instances of take are 
proposed for authorization, with each occurring within a day, and 
likely any take would only occur once a year to seven different 
individual animals. If this small number of exposures results in 
temporary behavioral reactions, such as slight displacement (but not 
abandonment) of a migratory pathway, it is unlikely to result in 
energetic consequences that could affect reproduction or survival of 
any individuals. Overall, NMFS expects that any harassment of North 
Atlantic right whales incidental to the specified activities would not 
result in changes to their migration patterns as only temporary 
avoidance of an area during construction is expected to occur, animals 
would be migrating through these areas and are not known to remain in 
this habitat for extensive durations, and that any temporarily 
displaced animals would be able to return to or continue to travel 
through these areas once activities have ceased. Although acoustic 
masking may occur, based on the acoustic characteristics of noise 
associated with pile driving (e.g., frequency spectra, short duration 
of exposure given anticipated behavioral patterns (i.e., migration)) 
and construction surveys (e.g., intermittent signals), NMFS expects 
masking effects to be minimal (e.g., impact or vibratory pile driving) 
to none (e.g., construction surveys), and only present in a period of 
time that a North Atlantic right whale were in the close vicinity of 
pile driving, which is expected to be infrequent and brief, given time 
of year restrictions, anticipated mitigation effectiveness, and likely 
avoidance behaviors. TTS is another potential form of Level B 
harassment that could result in brief periods of slightly reduced 
hearing sensitivity, affecting behavioral patterns by making it more 
difficult to hear or interpret acoustic cues within the frequency range 
(and slightly above) of sound produced during impact pile driving; 
however, given the North Atlantic right whale-specific mitigation 
(described below), it is unlikely TTS would occur and, if it did, any 
TTS would likely be of low amount, be limited to frequencies where most 
construction noise is centered (below 2 kHz) and we would expect 
hearing sensitivity returning to pre-exposure levels shortly after 
migrating through the area.
    Foundation installation impact pile driving source levels would be 
loud; however, we anticipate any whale exposed to pile driving noise 
would be receiving low levels (closer to the 160 dB rms level than 
source levels) and be at relatively greater distances given the 
proposed mitigation measures. As described in the Potential Effects to 
Marine Mammals and Their Habitat section, the distance of the receiver 
to the source influences the severity of response with greater 
distances typically eliciting less severe responses. Additionally, NMFS 
recognizes North Atlantic right whales migrating could be pregnant 
females (in the fall) and cows with older calves (in spring) and that 
these animals may slightly alter their migration course in response to 
any foundation pile driving; however, as described in the Potential 
Effects to Marine Mammals and Their Habitat section, we anticipate that 
course diversion would be of small magnitude. Hence, while some 
avoidance of the pile driving activities may occur, we anticipate any 
avoidance behavior would be similar to that of gray whales and be on 
the order of a couple hundreds of meters up to 1 km. This diversion 
from a path otherwise uninterrupted by Ocean Wind activities is not 
expected to result in meaningful energetic costs that would impact 
annual rates of recruitment of survival. Evidence suggests that in no 
case would a North Atlantic right whale abandon its migratory behavior. 
NMFS expects that North Atlantic right whales would be able to avoid 
areas during periods of active noise production, while not being forced 
out of important migratory habitat.
    North Atlantic right whale presence in the Ocean Wind 1 project 
area is year-round; however, abundances during summer months are low 
compared to the winter months with spring and fall serving as 
``shoulder seasons,'' wherein abundance waxes (fall) or wanes (spring). 
Given this year-round habitat usage and in recognition that where and 
when whales may actually occur during project activities is unknown as 
it depends on the annual migratory behaviors, the applicant has 
proposed and NMFS is proposing to require a suite of mitigation 
measures designed to reduce impacts to North Atlantic right whales to 
the maximum extent practicable. These mitigation measures (e.g., vessel 
separation distances, reduced speed) would not only avoid the 
likelihood of ship strikes, but also would minimize the severity of 
behavioral disruptions by minimizing impacts (e.g., through sound 
reduction using abatement systems). This would further ensure that the 
relatively small number of Level B harassment takes that are estimated 
to occur are not expected to affect reproductive success or 
survivorship via detrimental impacts to energy intake or calf/calf 
interactions during migratory transit. However, even in consideration 
of these recent habitat-use and distribution shifts, Ocean Wind would 
be installing monopiles when the presence of North Atlantic right 
whales is lower (compared to winter).
    As described in the Description of Marine Mammals in the Area of 
Specified Activities section, Ocean Wind 1 would be constructed within 
the North Atlantic right whale migratory corridor BIA which represent 
areas and months within which a substantial portion of a species or 
population is known to migrate. The Ocean Wind 1 project area is 
relatively small compared with the migratory BIA area (approximately 
277 km\2\ against the size of the full North Atlantic right whale 
migratory BIA at 269,448 km\2\). Because of this, any North Atlantic 
right whales that may be encountered during the Ocean Wind 1 project 
would be expected to be migrating through the area. There are no known 
North Atlantic right whale mating or calving areas within the project 
area. The primary

[[Page 64991]]

foraging habitat for North Atlantic right whales is located further 
north (391 km (243 mi) away from the lease area). However, if foraging 
events did occur, these would likely be sporadic and not focused 
specifically in the project area. In any case, it is unlikely dedicated 
foraging activities in this area would occur often, much less 
consistently the same hours when impact pile driving is planned to 
occur. Impact driving, which is responsible for the majority of North 
Atlantic right whale impacts, would be limited to a maximum of eight 
hours per day (intermittent two four-hour events); therefore, if 
foraging activity is disrupted due to pile driving, any disruption 
would be brief as North Atlantic right whales would likely resume 
foraging after pile driving ceases or when animals move to another 
location to forage. Prey species are mobile (e.g., calanoid copepods 
can initiate rapid and directed escape responses) and are broadly 
distributed throughout the project area (noting again that North 
Atlantic right whale prey is not concentrated in the project area); 
therefore, any impacts to prey that may occur are also unlikely to 
impact marine mammals. However, given the project area is in the 
migratory corridor and not a dedicated foraging ground, animals are 
more likely to be transiting through and not engaging in concentrated, 
frequent foraging behavior.
    The most significant measure to minimize impacts to individual 
North Atlantic right whales during monopile installations is the 
seasonal moratorium on impact pile driving of monopiles from January 1 
through April 30, when North Atlantic right whale abundance in the 
project area is expected to be greatest. NMFS also expects this measure 
to greatly reduce the potential for mother-calf pairs to be exposed to 
impact pile driving noise above the Level B harassment threshold during 
their annual spring migration through the project area from calving 
grounds to foraging grounds. Further, NMFS expects that exposures to 
North Atlantic right whales would be reduced due to the additional 
proposed mitigation measures that would ensure that any exposures above 
the Level B harassment threshold would result in only short-term 
effects to individuals exposed. Impact pile driving of monopiles is 
limited to two piles per day and may only begin in the absence of North 
Atlantic right whales (any visual detection by PSOs and if detected in 
a PAM clearance zone). If impact pile driving has commenced, NMFS 
anticipates North Atlantic right whales would avoid the area, utilizing 
nearby waters to carry on behavior pre-exposure. However, impact pile 
driving must be shutdown if a North Atlantic right whale is sighted at 
any distance, unless a shutdown is not feasible due to risk of injury 
or loss of life. Shutdown may occur anywhere within or beyond the Level 
B harassment zone, further minimizing the duration and intensity of 
exposure. NMFS anticipates that if North Atlantic right whales go 
undetected and they are exposed to impact pile driving noise it is 
unlikely a North Atlantic right whale would approach the impact pile 
driving locations to the degree that they would purposely expose 
themselves to very high noise levels. These measures are designed to 
avoid PTS and also reduce the severity of Level B harassment, including 
the potential for TTS. While some TTS could occur, given the proposed 
mitigation measures (e.g., delay pile driving upon a sighting or 
acoustic detection and shutting down upon a sighting or acoustic 
detection), the potential for TTS to occur is low.
    The proposed clearance and shutdown measures are most effective 
when detection efficiency is maximized as the measures are triggered by 
a sighting or acoustic detection. To maximize detection efficiency, 
Ocean Wind proposed, and NMFS is proposed to require the combination of 
PAM and visual observers (as well as communication protocols with other 
Ocean Wind vessels, and other heightened awareness efforts such as 
daily monitoring of North Atlantic right whale sighting databases) such 
that as a North Atlantic right whale approaches the source (and thereby 
could be exposed to higher noise energy levels), PSO detection efficacy 
will increase, the whale will be detected, and a delay to commencing 
pile driving or shutdown (if feasible) will occur. In addition, the 
implementation of a soft start will provide an opportunity for whales 
to move away from the source if they are undetected, reducing received 
levels. Further, Ocean Wind has committed to not installing two WTG or 
OSS foundations simultaneously. North Atlantic right whales would, 
therefore, not be exposed to concurrent impact pile driving on any 
given day and the area ensonified at any given time would be limited. 
We note that Ocean Wind has requested to install foundation piles at 
night which does raise concern over detection capabilities. Ocean Wind 
is currently conducting detection capability studies using alternative 
technology and intends to submit the results of that study to NMFS. In 
consultation with BOEM, NMFS will review the results and determine if 
Ocean Wind should be allowed to conduct pile driving at night.
    Although temporary cofferdam Level B harassment zones are large (10 
km to the unweighted Level B harassment threshold; Table 1-24 in the 
ITA application), the cofferdams would be installed nearshore over a 
short timeframe (36 hours total; 18 hours for installation and 18 hours 
for removal), with the closest cofferdam (BL England) approximately 
24.18 km (15.02 mi) away from the Lease Area. Therefore, it is also 
unlikely that any North Atlantic right whales would be exposed to 
concurrent vibratory and impact pile installation noises. Any UXO/MEC 
detonations, if determined to be necessary, would only occur in 
daylight and if all other low-order methods or removal of the explosive 
equipment of the device are determined to not be possible. Given that 
specific locations for the ten possible UXOs/MECs are not presently 
known, Ocean Wind has agreed to undertake specific mitigation measures 
to reduce impacts on any North Atlantic right whales, including the use 
of a sound attenuation device (i.e., likely a bubble curtain and 
another device) to a minimum of 10 dB and not detonating a UXO/MEC is a 
North Atlantic right whale is observed within an exclusion zone. The 
area around the detonation would be monitored effectively using at 
least 2 dedicated PSO vessels or a vessel and aerial platform. Finally, 
for HRG surveys, the maximum distance to the Level B harassment 
isopleth is 141 m. The estimated take, by Level B harassment only, 
associated with construction surveys is to account for any North 
Atlantic right whale PSOs may miss when HRG acoustic sources are 
active. However, because of the short maximum distance to the Level B 
harassment isopleth (141 m), the requirement that vessels maintain a 
distance of 500 m from any North Atlantic right whales, and the whales 
are unlikely to remain in close proximity to a construction survey 
vessel for any length of time, any exposure to noise levels about 
harassment threshold if any, would be very brief as the source would be 
turned off upon detection. To further minimize exposure, ramp-up of 
boomers, sparkers, and CHIRPs must be delayed during the clearance 
period if PSOs detect a North Atlantic right whale (or any other ESA-
listed species) within 500 m of the acoustic source. Operation of this 
equipment (if active) must be shut down if a North Atlantic right whale 
is sighted

[[Page 64992]]

within 500 m. With implementation of the proposed mitigation 
requirements, take by Level A harassment is unlikely and is therefore 
not proposed for authorization. Potential impacts associated with Level 
B harassment would include low-level, temporary behavioral 
modifications, most likely in the form of avoidance behavior or 
potential alteration of vocalizations (due to masking). Given the high 
level of precautions taken to minimize both the amount and intensity of 
Level B harassment take on marine mammals and because the exposures 
will not occur in areas or at times where impacts would be likely to 
affect feeding and energetics or calving (given this is a migratory 
corridor), it is unlikely that the anticipated low level exposures 
could lead to reduced reproductive success or survival.
    Altogether, North Atlantic right whales are listed as endangered 
under the ESA with a declining population primarily due to vessel 
strike and entanglement. Only five instances of take, by Level B 
harassment only, are estimated to occur annually within a migratory 
corridor and 14 instance of take over the 5-year effective period of 
the proposed rule with the likely scenario that each instance of 
exposure occurs to a different individual (a small portion of the 
stock), and any individual North Atlantic right whale is likely to be 
disturbed at a low-moderate level. The low magnitude and severity of 
harassment effects is not expected to result in impacts on the 
reproduction or survival of any individuals, let alone have impacts on 
annual rates of recruitment or survival of this stock. No mortality, 
serious injury, or Level A harassment is anticipated or proposed to be 
authorized. For these reasons, we have preliminarily determined, in 
consideration of all of the effects of the Ocean Wind's activities 
combined, that the proposed authorized take would have a negligible 
impact on the North Atlantic stock of North Atlantic right whales.
Humpback Whales
    Humpback whales potentially impacted by Ocean Wind's activities do 
not belong to a DPS that is listed as threatened or endangered under 
the ESA. However, humpback whales along the Atlantic Coast have been 
experiencing an active UME as elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida since 
January 2016. Of the cases examined, approximately half had evidence of 
human interaction (ship strike or entanglement). The UME does not yet 
provide cause for concern regarding population-level impacts. Despite 
the UME, the relevant population of humpback whales (the West Indies 
breeding population, or DPS of which the Gulf of Maine stock is a part) 
remains stable at approximately 12,000 individuals.
    Ocean Wind has requested, and NMFS has proposed to authorize, a 
limited amount of humpback whale harassment. No mortality or serious 
injury is anticipated or proposed to be authorized. Similar to North 
Atlantic right whales, impact pile driving (assuming the joint-monopile 
and pin pile build-out) has the potential to result in the highest 
amount of annual take (6 Level A harassment and 21 Level B harassment 
takes) and is of greatest concern given loud source levels. As 
described in the Description of Marine Mammals in the Area of Specified 
Activities section, Brown et al. (2022) found that mean humpback whale 
occurrence offshore of New Jersey was low (2.5 days), mean occupancy 
was 37.6 days, and 31.3 percent of whales returned from one year to the 
next. The majority of whales were seen during summer (July-September, 
62.5 percent), followed by autumn (October-December, 23.5 percent) and 
spring (April-June, 13.9 percent). These data suggest that of the 21 
maximum annual instances of predicted to take by Level B harassment, 
they could consist either of individuals exposed to levels above the 
Level B harassment threshold once during migration and/or individuals 
exposed on 2 or 3 days to activities conducted by Ocean Wind (primarily 
impact or vibratory pile driving and HRG surveys during months in which 
they are abundant), and we note that any such exposures would not be 
occurring continuously throughout the days. Animals exposed are likely 
to be juveniles and while they may be foraging (primary foraging 
grounds occur in more northern latitudes), they are likely migrating 
through the area.
    For all the reasons described in the Mysticete section above, we 
anticipate any PTS or TTS to be small (limited to a few dB) and be 
concentrated at half or one octave above the frequency band of pile 
driving noise (most sound is below 2 kHz) which does not include the 
full predicted hearing range of baleen whales. If TTS is incurred, 
hearing sensitivity would likely return to pre-exposure levels shortly 
after exposure ends. Any masking or physiological responses would also 
be of low magnitude and severity for reasons described above.
    Altogether, the amount of take proposed to be authorized is small 
and the low magnitude and severity of harassment effects is not 
expected to result in impacts on the reproduction or survival of any 
individuals, let alone have impacts on annual rates of recruitment or 
survival of this stock. No mortality or serious injury is anticipated 
or proposed to be authorized. For these reasons, we have preliminarily 
determined, in consideration of all of the effects of the Ocean Wind's 
activities combined, that the proposed authorized take would have a 
negligible impact on the Gulf of Maine stock of humpback whales.
Blue, Sei, and Fin Whales
    The Western North Atlantic stocks of blue and fin whales and the 
Nova Scotia stock of sei whales are all listed under the ESA. There are 
no known areas of specific biological importance in or around the 
project area, nor are there any UMEs. For all three stocks, the actual 
abundance of each stock is likely significantly greater than what is 
reflected in each SAR because, as noted in the SARs, the most recent 
population estimates are primarily based on surveys conducted in U.S. 
waters and all three stocks' range extends well beyond the U.S. EEZ.
    Regarding the magnitude of take, the maximum number of annual and 
5-year total estimated harassment takes for all three species is very 
low: 4, 3, and 13 takes by Level B harassment of blue, sei, and fin 
whales respectively, with 4 and 1 potential Level A harassment takes 
for fin and sei whales. Similarly to other mysticetes, we would 
anticipate the number of takes to represent individuals taken only once 
or, in rare cases, an individual taken a very small number of times as 
most whales in the project area would be migrating. Regarding the 
severity of those individual takes by behavioral Level B harassment, we 
would anticipate impacts to be limited to low-level, temporary 
behavioral responses with avoidance and potential masking impacts in 
the vicinity of the turbine installation to be the most likely type of 
response (similar to other migrating mysticetes). Any avoidance 
distances would be expected to be relatively limited. We are also 
proposing to authorize a very small amount of Level A harassment takes 
in the form of PTS to fin whales and sei whales (4 and 1 takes, 
respectively). As with other mysticetes, we anticipate the mitigation 
measures employed and avoidance behavior would reduce the severity of 
PTS such that any threshold shift would be small and be limited to the 
frequencies in which impact pile driving contains the most energy which

[[Page 64993]]

does not overlap with the entire hearing range of these species.
    Overall, the take by harassment proposed to be authorized is of a 
low magnitude and severity and is not expected to result in impacts on 
the reproduction or survival of any individuals, let alone have impacts 
on annual rates of recruitment or survival of this stock. No mortality 
or serious injury is anticipated or proposed to be authorized. For 
these reasons, we have preliminarily determined, in consideration of 
all of the effects of the Ocean Wind's activities combined, that the 
proposed authorized take would have a negligible impact on the Western 
North Atlantic blue whale and fin whales stocks and the Nova Scotia sei 
whale stock.
Minke Whales
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales. No 
mortality or serious injury of this stock is anticipated or proposed 
for authorization.
    Minke whales may be taken by Level A and Level B harassment; 
however, this would be limited to a low number of individuals annually 
(22 and 74, respectively). We anticipate the impacts of this harassment 
to follow that described in the general Mysticete section above. In 
summary, any PTS would be of small amount not expected to impact 
individual fitness. Level B harassment would be temporary with primary 
impacts being temporary displacement of the project area but not 
abandonment of any migratory behavior. Overall, the amount of take 
proposed to be authorized is small and the low magnitude and severity 
of harassment effects is not expected to result in impacts on the 
reproduction or survival of any individuals, let alone have impacts on 
annual rates of recruitment or survival of this stock. No mortality or 
serious injury is anticipated or proposed to be authorized. For these 
reasons, we have preliminarily determined, in consideration of all of 
the effects of the Ocean Wind's activities combined, that the proposed 
authorized take would have a negligible impact on the Gulf of Maine 
stock of humpback whales.

Odontocetes

    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below, which are further 
divided into the following subsections: Sperm whales, Dolphins and 
small whales; and Harbor porpoise. These sub-sections include more 
specific information about the group, as well as conclusions for each 
stock represented.
    The majority of takes by harassment of odontocetes incidental to 
Ocean Wind 1 specified activities are by Level B harassment from pile 
driving and HRG surveys. We anticipate that, given ranges of 
individuals (i.e., that some individuals remain within a small area for 
some period of time), and non-migratory nature of some odontocetes in 
general (especially as compared to mysticetes), these takes are more 
likely to represent multiple exposures of a smaller number of 
individuals than is the case for mysticetes, though some takes may also 
represent one-time exposures to an individual.
    Pile driving, particularly impact pile driving foundation piles, 
has the potential to disturb odontocetes to the greatest extent 
compared to HRG surveys and UXO/MEC detonations. We expect animals to 
avoid the area during pile driving; however, their habitat range is 
extensive compared to the area ensonified during pile driving.
    As described earlier, Level B harassment may manifest as changes to 
behavior (e.g., avoidance, changes in vocalizations (from masking) or 
foraging); physiological responses, or TTS. Odontocetes are highly 
mobile species and, similar to mysticetes, would expect any avoidance 
behavior to be limited to the area near the pile being driven. While 
masking could occur during pile driving, it would only occur in the 
vicinity of and during the duration of the pile driving, and would not 
generally occur in a frequency range that overlaps communication or 
echolocation signals. The mitigation measures (e.g., use of sound 
abatement systems, implementation of clearance and shutdown zones) 
would also minimize received levels such that the severity of any 
behavioral response would be expected to be less than exposure to 
unmitigated noise exposure.
    Any masking or TTS effects is also anticipated to be of low-
severity. First, the frequency range of pile driving, the most 
impactful activity conducted by Ocean Wind in terms of response 
severity, falls within the range of most odontocete vocalizations. 
However, odontocete vocalizations span a much wider range than the low 
frequency construction activities proposed by Ocean Wind. Further, as 
described above, recent studies suggest odontocetes have a mechanism to 
self-mitigate (i.e., reduce hearing sensitivity) the impacts of noise 
exposure. Any masking or TTS is anticipated to be limited and would 
typically only interfere with communication within a portion of an 
odontocete's range and as discussed earlier, the effects would only be 
expected to be of a short duration and, for TTS, a relatively small 
degree. Furthermore, odontocete echolocation occurs predominantly at 
frequencies significantly higher than low frequency construction 
activities; therefore, there is little likelihood that threshold shift, 
either temporary or permanent would interfere with feeding behaviors 
(noting that take by Level A harassment (PTS) is proposed for only two 
species: bottlenose dolphins and harbor porpoise. For HRG surveys, the 
sources operate at higher frequencies that pile driving and UXO/MEC 
detonations; however, sound from these sources attenuate very quickly 
in the water column, as described above, therefore any potential for 
TTS and masking is very limited. Further, odontocetes (e.g., common 
dolphins, spotted dolphins, bottlenose dolphins) have demonstrated an 
affinity to bow-ride actively surveying HRG surveys; therefore, the 
severity of any harassment, if it does occur, is anticipated to be 
minimal.
    The waters off the coast of New Jersey are used by several 
odontocete species; however, none (except the sperm whale) are listed 
under the ESA and there are no known habitats of particular importance. 
In general, odontocete habitat ranges are far-reaching along the 
Atlantic coast of the U.S. and the waters off of New Jersey do not 
contain any unique features that make up the project area.
Sperm Whale
    The Western North Atlantic stock of sperm whales spans the East 
Coast out into oceanic waters well beyond the U.S. EEZ. Although listed 
as endangered, the primary threat faced by the sperm whale (i.e., 
commercial whaling) has been eliminated and, further, sperm whales in 
the western North Atlantic were little affected by modern whaling 
(Taylor et al., 2008). Current potential threats to the species 
globally include vessel strikes, entanglement in fishing gear, 
anthropogenic noise, exposure to contaminants, climate change, and 
marine debris. There is no currently reported trend for the stock and, 
although the species is listed as endangered under the ESA, there are 
no specific issues with the status of the stock that cause particular 
concern (e.g., no UMEs). There are no known areas of biological 
importance (e.g., critical

[[Page 64994]]

habitat or BIAs) in or near the project area.
    No mortality, serious injury or Level A harassment is anticipated 
or proposed to be authorized for this species. Impacts would be limited 
to Level B harassment and would occur to only a very small number of 
individuals (maximum of 6 per year or 18 across all 5 years) incidental 
to pile driving, UXO/MEC detonation(s), and HRG surveys. Sperm whales 
are not common within the project area due to the shallow waters and it 
is not expected any noise levels would reach habitat in which sperm 
whales are common, including deep-water foraging habitat. If sperm 
whales do happen to be present in the project area during any 
activities related to Ocean Wind 1, they would likely be only transient 
visitors and not engaging in any significant behaviors. This very low 
magnitude and severity of effects is not expected to result in impacts 
on the reproduction or survival of individuals, much less impact annual 
rates of recruitment or survival. For these reasons, we have 
determined, in consideration of all of the effects of the Ocean Wind's 
activities combined, that the take proposed to be authorized would have 
a negligible impact on sperm whales.
Dolphins and Small Whales (Including Delphinids, Pilot Whales, and 
Harbor Porpoises)
    There are no specific issues with the status of odontocete stocks 
that cause particular concern (e.g., no recent UMEs). No mortality or 
serious injury is expected nor proposed to be authorized for these 
stocks. With the exception of 11 takes by Level A harassment proposed 
for the coastal stock of bottlenose dolphins as a precaution in the 
event that a pod approaches the cofferdams during either installation 
or removal activities, only Level B harassment is anticipated or 
proposed for authorization for any dolphin or small whale.
    The maximum amount of Level B harassment take proposed for 
authorization within any one year for all odontocetes cetacean stocks 
ranges from 100 to 1,645 instances, which is less than 2.5 percent as 
compared to the population size for all stocks, with the exception of 
coastal bottlenose dolphins, for which the estimate is closer to 25 
percent, if each instance were considered a take of a separate 
individual. As described above for odontocetes broadly, we anticipate 
that a fair number of these instances of take in a day represent 
multiple exposures of a smaller number of individuals, meaning the 
actual number of individuals taken is lower. Although some amount of 
repeated exposures to some individuals are likely given the duration of 
activity proposed by Ocean Wind, the intensity of any Level B 
harassment combined with the availability of alternate nearby foraging 
habitat suggests that the likely impacts would not impact the 
reproduction or survival of any individuals.
    Ocean Wind has requested, and we proposed to authorize, 11 
instances of Level A harassment in the form of PTS to the northern 
coastal stock of bottlenose dolphins due to vibratory pile driving of 
temporary cofferdams using sheet piles. We anticipate the mitigation 
measures employed and avoidance behavior by this species would reduce 
the severity of PTS such that any threshold shift would be small and be 
limited to half or one octave above the frequencies in which vibratory 
pile driving contains the most energy (below 2 kHz) which would only 
overlap a relatively small portion of the hearing range of these 
species. In general, any small amount of PTS incurred in the noted 
frequency range is unlikely to interfere significantly with dolphin 
vocalization or echolocation abilities and, as such, is not anticipated 
to impact survival or reproduction of any individual.
    The western North Atlantic northern migratory coastal stock of 
bottlenose dolphins is not listed under the ESA but is strategic given 
its depleted status under the MMPA. The stock has, in the past, been 
subject to UMEs. An analysis of coast-wide (New Jersey to Florida) 
trends in abundance for common bottlenose dolphins based on aerial 
surveys conducted between 2002 and 2016. There was no significant trend 
in population size between 2002 and 2011; however, between 2011 and 
2016, there was a significant difference in slope indicating a decline 
in population size. NMFS identified the 2013-2015 UME as a cause for 
this decline which is no longer a threat. There have been no UMEs since 
2015 and there are no active UMEs impacting this stock.
    The amount of take authorized for this stock constitutes the 
largest total percentage of exposures in comparison with the stock 
abundance (total of 24.78 percent based on the maximum take in any one 
year). Ocean Wind has requested, and we have proposed to authorize, 
1,643 instances of Level B harassment. However, the number of 
individuals taken is highly likely to be a combination of repeat 
exposures to the same individual or single exposures to individuals; 
therefore the amount of individuals taken represent a smaller 
percentage of the population than the number of exposures. The majority 
of exposures (1,031 instances of Level B harassment; total of 15.5 
percent) is due to vibratory pile driving to install cofferdams which 
will likely elicit less severe responses than impact pile driving or 
UXO/MEC detonation given lower source levels. The potential effects 
from exposure to any of Ocean Wind's pile driving, UXO/MEC detonation 
or HRG survey activities are likely to be temporary avoidance of the 
area, changes to behavior such as vocalizing (due to masking) or 
foraging, and potential TTS. No Level A harassment (in the form of PTS 
or other injury (from UXO/MEC detonation)) is anticipated or proposed 
to be authorized. Cofferdam installation would be relatively brief 
compared to other project activities (a maximum of 12 hours of 
vibratory installation/removal per day within any 24-hour period). 
Given the temporary nature and minimal severity of the effects, NMFS 
does not expect that, collectively, the activities proposed would 
impact the reproduction or survival of any individuals, or the 
population collectively through the annual rates of recruitment and 
survival.
    Overall, the populations of all dolphins and small whale species 
and stocks for which we propose to authorize take are stable (no 
declining population trends), not facing existing UMEs, and the small 
amount, magnitude and severity of effects is not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined, in consideration of all of the effects of the Ocean 
Wind's activities combined, that the take proposed to be authorized 
would have a negligible impact on all dolphin and small whale species 
and stocks considered in this analysis.
Harbor Porpoises
    The Gulf of Maine/Bay of Fundy stock of harbor porpoise is found 
predominantly in northern U.S. coastal waters (less than 150 m depth) 
and up into Canada's Bay of Fundy. Although the population trend is not 
known, there are no UMEs or other factors that cause particular concern 
for this stock. No mortality or non-auditory injury by UXO/MEC 
detonation are anticipated or authorized for this stock. We propose to 
authorize 350 takes by Level B harassment and 69 takes by Level A 
harassment.
    Regarding the severity of those individuals taken by behavioral 
Level B harassment, because harbor porpoises are particularly sensitive 
to noise, it is

[[Page 64995]]

likely that a fair number of the responses could be of a moderate 
nature, particularly to pile driving. In response to pile driving, 
harbor porpoises are likely to avoid the area during construction, as 
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne 
et al. (2013) in Germany, and in Vallejo et al. 2017 in the United 
Kingdom, although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. However, pile driving is 
scheduled to occur when harbor porpoise abundance is low off the coast 
of New Jersey and given alternative foraging areas, any avoidance of 
the area by individuals is not likely to impact the reproduction or 
survival of any individuals. Given only one UXO/MEC would be detonated 
on any given day and up to only 10 UXO/MEC would be detonated over the 
5-year effective period of the LOA, any behavioral response would be 
brief and of a low severity.
    With respect to PTS and TTS, the effects on an individual are 
likely relatively low given the frequency bands of pile driving (most 
energy below 2 kHz) compared to harbor porpoise hearing (150 Hz to 160 
kHz peaking around 40 kHz). Specifically, PTS or TTS is unlikely to 
impact hearing ability in their more sensitive hearing ranges, or the 
frequencies in which they communicate and echolocate. Regardless, we 
have authorized a limited amount of PTS but expect any PTS that may 
occur to be within the very low end of their hearing range where harbor 
porpoises are not particularly sensitive (i.e., any PTS or TTS is 
unlikely to impact hearing ability in their more sensitive hearing 
ranges) and any PTS would be of small magnitude. As such, any PTS would 
not interfere with key foraging or reproductive strategies necessary 
for reproduction or survival.
    In summary, the amount of take proposed to be authorized is small 
and while harbor porpoises are likely to avoid the area during any 
construction activity discussed herein, as demonstrated during European 
wind farm construction, the time of year in which work would occur is 
when harbor porpoise are not in high abundance and any work would not 
result in abandonment of the waters off of New Jersey. Any PTS or TTS 
would occur in the very low ends of harbor porpoise hearing range and 
be of small magnitude. The low magnitude and severity of harassment 
effects is not expected to result in impacts on the reproduction or 
survival of any individuals, let alone have impacts on annual rates of 
recruitment or survival of this stock. No mortality or serious injury 
is anticipated or proposed to be authorized. For these reasons, we have 
preliminarily determined, in consideration of all of the effects of the 
Ocean Wind's activities combined, that the proposed authorized take 
would have a negligible impact on the Gulf of Maine/Bay of Fundy stock 
of harbor porpoise.

Pinnipeds (Harbor Seals and Gray Seals)

    Neither of these stocks of harbor seals or gray seals are listed 
under the ESA. Ocean Wind requested, and NMFS proposes to authorize no 
more than 35 and 844 harbor seals and 31 and 305 gray seals by Level A 
and Level B harassment, respectively, within any one year. These 
species occur in New Jersey waters most often in winter when impact and 
vibratory pile driving and UXO/MEC detonations would not occur. Seals 
are also more likely to be close to shore such that exposure to impact 
pile driving would be expected to be at lower levels generally (but 
still above NMFS behavioral harassment threshold). The majority of 
takes of these species' is from vibratory pile driving associated with 
temporary cofferdam installation and removal from which impacts are 
expected to be minimal. Research and observations show that pinnipeds 
in the water may be tolerant of anthropogenic noise and activity (a 
review of behavioral reactions by pinnipeds to impulsive and non-
impulsive noise can be found in Richardson et al. (1995) and Southall 
et al. (2007)). Available data, though limited, suggest that exposures 
between approximately 90 and 140 dB SPL do not appear to induce strong 
behavioral responses in pinnipeds exposed to non-pulse sounds in water 
(Costa et al., 2003; Jacobs and Terhune, 2002; Kastelein et al., 
2006c). Based on the limited data on pinnipeds in the water exposed to 
multiple pulses (small explosives, impact pile driving, and seismic 
sources), exposures in the approximately 150 to 180 dB SPL range 
generally have limited potential to induce avoidance behavior in 
pinnipeds (Blackwell et al., 2004; Harris et al., 2001; Miller et al., 
2004). Pinnipeds may not react at all until the sound source is 
approaching within a few hundred meters and then may alert, ignore the 
stimulus, change their behaviors, or avoid the immediate area by 
swimming away or diving. Effects on pinnipeds that are taken by Level B 
harassment in the project area would likely be limited to reactions 
such as increased swimming speeds, increased surfacing time, or 
decreased foraging (if such activity were occurring). Most likely, 
individuals would simply move away from the sound source and be 
temporarily displaced from those areas (see Lucke et al., 2006; Edren 
et al., 2010; Skeate et al., 2012; Russell et al., 2016). Given their 
documented tolerance of anthropogenic sound (Richardson et al., 1995; 
Southall et al., 2007), repeated exposures of individuals of any of 
these species to levels of sound that may cause Level B harassment are 
unlikely to significantly disrupt foraging behavior. Thus, even 
repeated Level B harassment across a few days of some small subset of 
individuals, which could occur, is unlikely to result in impacts on the 
reproduction or survival of any individuals. Moreover, pinnipeds would 
benefit from the mitigation measures described in the Proposed 
Mitigation section.
    Ocean Wind requested, and NMFS is proposing to authorize, a small 
amount of PTS (48 harbor seals and 35 gray seals which constitutes less 
than 0.1 percent of the populations) incidental to pile driving and 
UXO/MEC detonation. The majority of PTS is from installing cofferdams 
which is unlikely to manifest as a large degree of PTS given the nature 
of vibratory pile driving and we would anticipate seals would move away 
from the activity prior to a large degree of PTS occurring. As 
described above, noise from pile driving and UXO/MEC detonation is low 
frequency and, while any PTS that does occur would fall within the 
lower end of pinniped hearing ranges (50 Hz to 86 kHz), PTS would not 
occur at frequencies where pinniped hearing is most sensitive. In 
summary, any PTS, would be of small degree and not occur across the 
entire, or even most sensitive, hearing range. Hence, any impacts from 
PTS are likely to be of low severity and not interfere with behaviors 
critical to reproduction or survival.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and occurred across Maine, New Hampshire, 
and Massachusetts until 2020. Based on tests conducted so far, the main 
pathogen found in the seals belonging to that UME was phocine distemper 
virus, although additional testing to identify other factors that may 
be involved in this UME are underway. Currently, the only active UME is 
occurring in Maine with some harbor and gray seals testing positive for 
highly pathogenic avian influenza (HPAI) H5N1. Although elevated 
strandings continue, neither UME (alone or in combination) provide 
cause for concern regarding population-level impacts to any of these 
stocks. For

[[Page 64996]]

harbor seals, the population abundance is over 75,000 and annual M/SI 
(350) is well below PBR (2,006) (Hayes et al., 2020). The population 
abundance for gray seals in the United States is over 27,000, with an 
estimated abundance, including seals in Canada, of approximately 
450,000. In addition, the abundance of gray seals is likely increasing 
in the U.S. Atlantic as well as in Canada (Hayes et al., 2020).
    Overall, impacts from the Level B harassment take proposed to be 
authorized incidental to Ocean Wind's specified activities would be of 
relatively low magnitude and a low severity. Similarly, while some 
individuals may incur PTS overlapping some frequencies that are used 
for foraging and communication, given the low degree, the impacts would 
not be expected to impact reproduction or survival of any individuals. 
In consideration of all of the effects of Ocean Wind's activities 
combined, we have preliminarily determined that the authorized take 
will have a negligible impact on harbor seals and gray seals.

Preliminary Negligible Impact Determination

    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the specified activities will have a negligible impact 
on all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is less than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS proposes to authorize incidental take (by Level A and B 
harassment) of 17 species of marine mammal (with 18 managed stocks). 
The maximum number of takes possible within any one year and proposed 
for authorization relative to the best available population abundance 
is low for all species and stocks potentially impacted (i.e., less than 
3 percent for 17 stocks, and less than 25 percent for 1 other stock; 
see Table 36). Therefore, NMFS preliminarily finds that small numbers 
of marine mammals may be taken relative to the estimated overall 
population abundances for those stocks.
    Based on the analysis contained herein of the proposed action 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Adaptive Management

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

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the promulgation of 
rulemakings, NMFS consults internally whenever we propose to authorize 
take for endangered or threatened species, in this case with the NMFS 
Greater Atlantic Regional Field Office (GARFO).
    The NMFS Office of Protected Resources is proposing to authorize 
the take of five marine mammal species, which are listed under the ESA: 
the North Atlantic right, sei, fin, blue, and sperm whale. The Permit 
and Conservation Division has requested initiation of Section 7 
consultation on September 12, 2022 with GARFO for the issuance of this 
proposed rulemaking. NMFS will conclude the Endangered Species Act 
consultation prior to reaching a determination regarding the proposed 
issuance of the authorization. The proposed regulations and any 
subsequent LOA(s) would be conditioned such that, in addition to 
measures included in those documents, the applicant would also be 
required to abide by the reasonable and prudent measures and terms and 
conditions of a Biological Opinion and Incidental Take Statement, 
issued by NMFS, pursuant to Section 7 of the Endangered Species Act.

Proposed Promulgation

    As a result of these preliminary determinations, NMFS proposes to 
promulgate an ITR for Ocean Wind authorizing take, by Level A and B 
harassment, incidental to construction activities associated with the 
Ocean Wind 1 offshore wind facility offshore of New Jersey for a five-
year period from August 1, 2023 through July 31, 2028, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. A draft

[[Page 64997]]

of the proposed rulemaking can be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility.

Request for Additional Information and Public Comments

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning Ocean Wind's request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare the final rule and make final determinations on 
whether to issue the requested authorization. This document and 
referenced documents provide all environmental information relating to 
our proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Ocean Wind is the sole entity that would be subject to the requirements 
in these proposed regulations, and Ocean Wind is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. Under the RFA, governmental jurisdictions are 
considered to be small if they are ``. . .governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than 50,000. . . .'' As of the 
2020 census, Atlantic County, NJ, the county containing Atlantic City, 
NJ, had a population of nearly 275,000 people. Because of this 
certification, a regulatory flexibility analysis is not required and 
none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. These requirements have 
been approved by OMB under control number 0648-0151 and include 
applications for regulations, subsequent LOA, and reports. Send 
comments regarding any aspect of this data collection, including 
suggestions for reducing the burden, to NMFS.
    NMFS has determined that activities requiring an authorization for 
the incidental, but not intentional, take of small numbers of marine 
mammals on the outer continental shelf are re not within or would not 
affect a state's coastal zone, and thus do not require a NMFS 
consistency determination under 307(c)(3)(A) of the Coastal Zone 
Management Act (CZMA), 16 U.S.C. 1456 (c)(3)(A), and associated 
regulations codified at 15 CFR 930, subpart D, and are not contingent 
on a state's concurrence. Activities requiring an authorization for the 
incidental take of small numbers of marine mammals are deemed an 
unlisted activity under 15 CFR 930.54. Pursuant to section 101(a)(5)(A) 
of the MMPA, NMFS is publishing notice of the proposed incidental take 
regulation and requests public comment. If the state wants to review 
the unlisted activity under the CZMA, then it must submit an unlisted 
activity review request to the Director of NOAA's Office for Coastal 
Management within 30 days from the date of publication of this document 
(see DATES section for exact dates), and notify the applicant and NMFS 
that it intends to review the proposed activity. If the request is not 
submitted within the 30 days, the state's opportunity to review the 
unlisted activity will be considered waived. Conversely, if the state 
timely submits an unlisted activity review request and the Director of 
the Office for Coastal Management approves the request, then the 
applicant must submit a consistency certification to the state for 
review. In the latter instance, NMFS will not issue the incidental take 
authorization until the state provides concurrence that the proposed 
activity is consistent with the state coastal management program or 
until concurrence by the state agency is presumed (due to the state's 
failure to respond within the required timeframe). See 15 CFR 930.54(d) 
and (e).

List of Subjects in 50 CFR Part 217

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

    Dated: October 20, 2022.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES

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

    Authority:  16 U.S.C. 1361 et seq, unless otherwise noted.

0
2. Add subpart AA, consisting of Sec. Sec.  [thinsp]217.260 through 
217.269, to read as follows:
Subpart AA--Taking Marine Mammals Incidental to Construction of the 
Ocean Wind 1 Wind Energy Facility Offshore of New Jersey
Sec.
217.260 Specified activity and specified geographical region.
217.261 Effective dates.
217.262 Permissible methods of taking.
217.263 Prohibitions.
217.264 Mitigation requirements.
217.265 Requirements for monitoring and reporting.
217.266 Letter of Authorization.
217.267 Modifications of Letter of Authorization.
217.268-217.269 [Reserved]

Subpart AA--Taking Marine Mammals Incidental to Construction of the 
Ocean Wind 1 Wind Energy Facility Offshore of New Jersey


Sec.  217.260  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the taking of marine 
mammals that occurs incidental to activities associated with 
construction of the Ocean Wind 1 Wind Energy Facility by Ocean Wind, 
LLC (Ocean Wind), a subsidiary of Orsted Wind Power North America, 
LLC's (Orsted) and a joint venture partner of the Public Service 
Enterprise Group Renewable Generation, LLC (PSEG), and those persons it 
authorizes or funds to conduct activities on its behalf in the area 
outlined in paragraph (b) of this section.
    (b) The taking of marine mammals by Ocean Wind may be authorized in 
a Letter of Authorization (LOA) only if it occurs in the Bureau of 
Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf 
(OCS)-A-0498 Commercial Lease of Submerged Lands for Renewable Energy 
Development and

[[Page 64998]]

along export cable routes at sea-to-shore transition points at BL 
England and Oyster Creek.
    (c) The taking of marine mammals by Ocean Wind is only authorized 
if it occurs incidental to the following activities associated with the 
Ocean Wind 1 Wind Energy Facility:
    (1) Installation of wind turbine generators (WTG) and offshore 
substation (OSS) foundations by impact pile driving;
    (2) Installation of temporary cofferdams by vibratory pile driving;
    (3) High-resolution geophysical (HRG) site characterization 
surveys; and
    (4) Detonation of unexploded ordnances or munitions and explosives 
of concern (UXOs/MECs).


Sec.  217.261  Effective dates.

    Regulations in this subpart are effective from August 1, 2023, 
through July 31, 2028.


Sec.  217.262  Permissible methods of taking.

    Under an LOA, issued pursuant to this section and Sec.  217.266, 
Ocean Wind, and those persons it authorizes or funds to conduct 
activities on its behalf, may incidentally, but not intentionally, take 
marine mammals within the area described in Sec.  217.260(b) in the 
following ways, provided Ocean Wind is in complete compliance with all 
terms, conditions, and requirements in this subpart and the appropriate 
LOA:
    (a) By Level B harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving (WTG and OSS monopile and/or 
jacket foundation installation), vibratory pile installation and 
removal of temporary cofferdams, the detonation of UXOs/MECs, and 
through HRG site characterization surveys.
    (b) By Level A harassment, provided take is associated with impact 
pile driving or UXO/MEC detonations.
    (c) The incidental take of marine mammals by the activities listed 
in paragraphs (a) and (b) of this section is limited to the species in 
the following table.

                        Table 1 to paragraph (c)
------------------------------------------------------------------------
      Marine mammal species         Scientific name          Stock
------------------------------------------------------------------------
Blue whale......................  Balaenoptera        Western North
                                   musculus.           Atlantic.
Fin whale.......................  Balaenoptera        Western North
                                   physalus.           Atlantic.
Sei whale.......................  Balaenoptera        Nova Scotia.
                                   borealis.
Minke whale.....................  Balaenoptera        Canadian East
                                   acutorostrata.      Stock.
North Atlantic right whale......  Eubalaena           Western North
                                   glacialis.          Atlantic.
Humpback whale..................  Megaptera           Gulf of Maine.
                                   novaeangliae.
Sperm whale.....................  Physeter            North Atlantic.
                                   macrocephalus.
Atlantic spotted dolphin........  Stenella frontalis  Western North
                                                       Atlantic.
Atlantic white-sided dolphin....  Lagenorhynchus      Western North
                                   acutus.             Atlantic.
Bottlenose dolphin..............  Tursiops truncatus  Northern Migratory
                                                       Coastal.
Bottlenose dolphin..............  Tursiops truncatus  Western North
                                                       Atlantic
                                                       Offshore.
Common dolphin..................  Delphinus delphis.  Western North
                                                       Atlantic.
Harbor porpoise.................  Phocoena phocoena.  Gulf of Maine/Bay
                                                       of Fundy.
Long-finned pilot whale.........  Globicephala melas  Western North
                                                       Atlantic.
Short-finned pilot whale........  Globicephala        Western North
                                   macrorhynchus.      Atlantic.
Risso's dolphin.................  Grampus griseus...  Western North
                                                       Atlantic.
Gray seal.......................  Halichoerus grypus  Western North
                                                       Atlantic.
Harbor seal.....................  Phoca vitulina....  Western North
                                                       Atlantic.
------------------------------------------------------------------------

Sec.  217.263  Prohibitions.

    Except for the takings described in Sec.  217.262 and authorized by 
an LOA issued under Sec. Sec.  217.266 and 217.267, it is unlawful for 
any person to do any of the following in connection with the activities 
described in Sec.  217.260:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  217.266 
and 217.267;
    (b) Take any marine mammal not specified in table 1 to Sec.  
217.262(c);
    (c) Take any marine mammal specified in the LOA in any manner other 
than as specified; or
    (d) Take any marine mammal specified in table 1 to Sec.  217.262(c) 
if NMFS determines such taking results in more than a negligible impact 
on the species or stocks of such marine mammals.
    (e) [Reserved]


Sec.  217.264  Mitigation requirements.

    When conducting the activities identified in Sec.  217.260(c) the 
mitigation measures contained in any LOA issued under Sec.  217.266 
must be implemented. These mitigation measures must include, but are 
not limited to:
    (a) General conditions. (1) A copy of any issued LOA must be in the 
possession of Ocean Wind and its designees, all vessel operators, 
visual and acoustic protected species observers (PSOs)/passive acoustic 
monitoring (PAM) operators, pile driver operator, and any other 
relevant designees operating under the authority of the issued LOA;
    (2) Ocean Wind must conduct briefings between construction 
supervisors, construction crews, and the PSO/PAM team prior to the 
start of all construction activities (as described in Sec.  217.260), 
and when new personnel join the work, in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
and reporting protocols, and operational procedures. An informal guide 
must be included with the Marine Mammal Monitoring Plan to aid 
personnel in identifying species if they are observed in the vicinity 
of the project area;
    (3) Ocean Wind must ensure that any visual observations of an ESA-
listed marine mammal are communicated to PSOs and vessel captains 
during the concurrent use of multiple project-associated vessels (of 
any size; e.g., construction surveys, crew/supply transfers, etc.);
    (4) If an individual from a species for which authorization has not 
been granted, or a species for which authorization has been granted but 
the authorized take number has been met, is observed entering or within 
the relevant Level B harassment zone for each specified activity, 
impact and vibratory pile driving activities and HRG acoustic sources 
must be shut down immediately, unless shutdown is not practicable, or 
be delayed if the activity has not commenced. Impact and vibratory pile 
driving, UXO/MEC detonation, and initiation of HRG acoustic sources 
must not commence or resume until the animal(s) has been

[[Page 64999]]

confirmed to have left the relevant clearance zone or the observation 
time has elapsed with no further sightings. UXO/MEC detonations may not 
occur until the animal(s) has been confirmed to have left the relevant 
clearance zone or the observation time has elapsed with no further 
sightings;
    (5) Prior to and when conducting any in-water construction 
activities and vessel operations, Ocean Wind personnel (e.g., vessel 
operators, PSOs) must use available sources of information on North 
Atlantic right whale presence in or near the project area including 
daily monitoring of the Right Whale Sightings Advisory System, and 
monitoring of Coast Guard VHF Channel 16 throughout the day to receive 
notification of any sightings and/or information associated with any 
Slow Zones (i.e., Dynamic Management Areas (DMAs) and/or acoustically-
triggered slow zones) to provide situational awareness for both vessel 
operators and PSOs;
    (6) Any marine mammals observed within a clearance or shutdown zone 
must be allowed to remain in the area (i.e., must leave of their own 
volition) prior to commencing impact and vibratory pile driving 
activities or construction surveys; and
    (7) Any large whale sighted by a PSO or acoustically detected by a 
PAM operator that cannot be identified as a non-North Atlantic right 
whale must be treated as if it were a North Atlantic right whale.
    (b) Vessel strike avoidance measures. (1) Prior to the start of 
construction activities, all vessel operators and crew must receive a 
protected species identification training that covers, at a minimum:
    (i) Sightings of marine mammals and other protected species known 
to occur or which have the potential to occur in the Ocean Wind 1 
project area;
    (ii) Training on making observations in both good weather 
conditions (i.e., clear visibility, low winds, low sea states) and bad 
weather conditions (i.e., fog, high winds, high sea states, with 
glare);
    (iii) Training on information and resources available to the 
project personnel regarding the applicability of Federal laws and 
regulations for protected species;
    (iv) Observer training related to these vessel strike avoidance 
measures must be conducted for all vessel operators and crew prior to 
the start of in-water construction activities; and
    (v) Confirmation of marine mammal observer training (including an 
understanding of the LOA requirements) must be documented on a training 
course log sheet and reported to NMFS.
    (2) All vessels must abide by the following:
    (i) All vessel operators and crews, regardless of their vessel's 
size, must maintain a vigilant watch for all marine mammals and slow 
down, stop their vessel, or alter course, as appropriate, to avoid 
striking any marine mammal;
    (ii) All vessels must have a visual observer on board who is 
responsible for monitoring the vessel strike avoidance zone for marine 
mammals. Visual observers may be PSO or crew members, but crew members 
responsible for these duties must be provided sufficient training by 
Ocean Wind to distinguish marine mammals from other phenomena and must 
be able to identify a marine mammal as a North Atlantic right whale, 
other whale (defined in this context as sperm whales or baleen whales 
other than North Atlantic right whales), or other marine mammal. Crew 
members serving as visual observers must not have duties other than 
observing for marine mammals while the vessel is operating over 10 kts;
    (iii) Year-round, all vessel operators must monitor, the project's 
Situational Awareness System, WhaleAlert, US Coast Guard VHF Channel 
16, and the Right Whale Sighting Advisory System (RWSAS) for the 
presence of North Atlantic right whales once every 4-hour shift during 
project-related activities. The PSO and PAM operator monitoring teams 
for all activities must also monitor these systems no less than every 
12 hours. If a vessel operator is alerted to a North Atlantic right 
whale detection within the project area, they must immediately convey 
this information to the PSO and PAM teams. For any UXO/MEC detonation, 
these systems must be monitored for 24 hours prior to blasting;
    (iv) Any observations of any large whale by any Ocean Wind staff or 
contractor, including vessel crew, must be communicated immediately to 
PSOs and all vessel captains to increase situational awareness;
    (v) All vessels must comply with existing NMFS vessel speed 
regulations, as applicable, for North Atlantic right whales;
    (vi) Between November 1st and April 30th, all vessels, regardless 
of size, must operate at 10 kts or less when traveling between ports in 
New Jersey, New York, Maryland, Delaware, and Virginia;
    (vii) All vessels, regardless of size, must immediately reduce 
speed to 10 kts or less when any large whale, mother/calf pairs, or 
large assemblages of non-delphinid cetaceans are observed (within 500 
m) of an underway vessel;
    (viii) All vessels, regardless of size, must immediately reduce 
speed to 10 kts or less when a North Atlantic right whale is sighted, 
at any distance, by anyone on the vessel;
    (ix) If a vessel is traveling at greater than 10 knots, in addition 
to the required dedicated visual observer, Ocean Wind must monitor the 
transit corridor in real-time with PAM prior to and during transits. If 
a North Atlantic right whale is detected via visual observation or PAM 
within or approaching the transit corridor, all crew transfer vessels 
must travel at 10 kts or less for 12 hours following the detection. 
Each subsequent detection shall trigger a 12-hour reset. A slowdown in 
the transit corridor expires when there has been no further visual or 
acoustic detection in the transit corridor in the past 12 hours;
    (x) All underway vessels (e.g., transiting, surveying) operating at 
any speed must have a dedicated visual observer on duty at all times to 
monitor for marine mammals within a 180[deg] direction of the forward 
path of the vessel (90[deg] port to 90[deg] starboard) located at an 
appropriate vantage point for ensuring vessels are maintaining 
appropriate separation distances. Visual observers must be equipped 
with alternative monitoring technology for periods of low visibility 
(e.g., darkness, rain, fog, etc.). The dedicated visual observer must 
receive prior training on protected species detection and 
identification, vessel strike minimization procedures, how and when to 
communicate with the vessel captain, and reporting requirements in this 
subpart. Visual observers may be third-party observers (i.e., NMFS-
approved PSOs) or crew members. Observer training related to these 
vessel strike avoidance measures must be conducted for all vessel 
operators and crew prior to the start of in-water construction 
activities. Confirmation of the observers' training and understanding 
of the Incidental Take Authorization (ITA) requirements must be 
documented on a training course log sheet and reported to NMFS;
    (xi) All vessels must maintain a minimum separation distance of 500 
m from North Atlantic right whales. If underway, all vessels must steer 
a course away from any sighted North Atlantic right whale at 10 kts or 
less such that the 500-m minimum separation distance requirement is not 
violated. If a North Atlantic right whale is sighted within 500 m of an 
underway vessel, that vessel must shift the engine to neutral. Engines 
must not be engaged until the whale has moved outside of the vessel's 
path and beyond 500 m. If

[[Page 65000]]

a whale is observed but cannot be confirmed as a species other than a 
North Atlantic right whale, the vessel operator must assume that it is 
a North Atlantic right whale and take the vessel strike avoidance 
measures described in this paragraph (b)(2)(xi);
    (xii) All vessels must maintain a minimum separation distance of 
100 m from sperm whales and non-North Atlantic right whale baleen 
whales. If one of these species is sighted within 100 m of an underway 
vessel, that vessel must shift the engine to neutral. Engines must not 
be engaged until the whale has moved outside of the vessel's path and 
beyond 100 m;
    (xiii) All vessels must, to the maximum extent practicable, attempt 
to maintain a minimum separation distance of 50 m from all delphinoid 
cetaceans and pinnipeds, with an exception made for those that approach 
the vessel (e.g., bow-riding dolphins). If a delphinid cetacean or 
pinniped is sighted within 50 m of an underway vessel, that vessel must 
shift the engine to neutral, with an exception made for those that 
approach the vessel (e.g., bow-riding dolphins). Engines must not be 
engaged until the animal(s) has moved outside of the vessel's path and 
beyond 50 m;
    (xiv) When a marine mammal(s) is sighted while a vessel is 
underway, the vessel must take action as necessary to avoid violating 
the relevant separation distances (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If a marine mammal(s) is 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engine(s) until 
the animal(s) is clear of the area. This does not apply to any vessel 
towing gear or any situation where respecting the relevant separation 
distance would be unsafe (i.e., any situation where the vessel is 
navigationally constrained);
    (xv) All vessels underway must not divert or alter course to 
approach any marine mammal. Any vessel underway must avoid speed over 
10 kts or abrupt changes in course direction until the animal is out of 
an on a path away from the separation distances; and
    (xiv) For in-water construction heavy machinery activities other 
than impact or vibratory pile driving, if a marine mammal is on a path 
towards or comes within 10 m of equipment, Ocean Wind must cease 
operations until the marine mammal has moved more than 10 m on a path 
away from the activity to avoid direct interaction with equipment.
    (c) Fisheries monitoring surveys--(1) Training. (i) All crew 
undertaking the fishery survey activities must receive protected 
species identification training prior to activities occurring.
    (ii) [Reserved]
    (2) During vessel use. (i) Marine mammal monitoring must occur 
prior to, during, and after haul-back, and gear must not be deployed if 
a marine mammal is observed in the area;
    (ii) Trawl operations must only start after 15 minutes of no marine 
mammal sightings within 1 nm of the sampling station; and
    (iii) During daytime sampling for the research trawl surveys, Ocean 
Wind must maintain visual monitoring efforts during the entire period 
of time that trawl gear is in the water from deployment to retrieval. 
If a marine mammal is sighted before the gear is removed from the 
water, the vessel must slow its speed and steer away from the observed 
animal(s).
    (3) Gear-specific best management practices (BMPs). (i) Baited 
remote underwater video (BRUV) sampling and chevron trap usage, for 
example, would utilize specific mitigation measures to reduce impacts 
to marine mammals. These specifically include the breaking strength of 
all lines being less than 1,700 pounds (771 kg), limited soak durations 
of 90 minutes or less, no gear being left without a vessel nearby, and 
a delayed deployment of gear if a marine mammal is sighted nearby;
    (ii) The permit number will be written clearly on buoy and any 
lines that go missing will be reported to NOAA Fisheries' Greater 
Atlantic Regional Fisheries Office (GARFO) Protected Resources Division 
as soon as possible;
    (iii) If marine mammals are sighed near the proposed sampling 
location, chevron traps and/or BRUVs will not be deployed;
    (iv) If a marine mammal is determined to be at risk of interaction 
with the deployed gear, all gear will be immediately removed;
    (v) Marine mammal monitoring would occur during daylight hours and 
begin prior to the deployment of any gear (e.g., trawls, longlines) and 
continue until all gear has been retrieved; and
    (vi) If marine mammals are sighted in the vicinity within 15 
minutes prior to gear deployment and it is determined the risks of 
interaction are present regarding the research gear, the sampling 
station will either move to another location or suspend activities 
until there are no marine mammal sightings for 15 minutes within 1 nm.
    (d) Wind turbine generator (WTG) and offshore substation (OSS) 
foundation installation--(1) Seasonal and daily restrictions. (i) 
Foundation impact pile driving activities may not occur January 1 
through April 30;
    (ii) No more than two foundation monopiles may be installed per 
day;
    (iii) Ocean Wind must not initiate pile driving later than 1.5 
hours after civil sunset or 1 hour before civil sunrise unless Ocean 
Wind submits an Alternative Monitoring Plan to NMFS for approval that 
proves the efficacy of their night vision devices; and
    (iv) Monopiles must be no larger than 11-m in diameter, 
representing the larger end of the tapered 8/11-m monopile design. If 
jacket foundations are used for OSSs, pin piles must be no larger than 
2.44-m in diameter. For all monopiles and pin piles, the minimum amount 
of hammer energy necessary to effectively and safely install and 
maintain the integrity of the piles must be used. Hammer energies must 
not exceed 4,000 kJ.
    (2) Noise abatement systems. (i) Ocean Wind must deploy dual noise 
abatement systems that are capable of achieving, at a minimum, 10 dB of 
sound attenuation, during all impact pile driving of foundation piles.
    (A) A single big bubble curtain (BBC) must not be used unless 
paired with another noise attenuation device; and
    (B) A double big bubble curtain (dBBC) may be used without being 
paired with another noise attenuation device.
    (ii) The bubble curtain(s) must distribute air bubbles using an air 
flow rate of at least 0.5 m\3\/(min*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must make appropriate adjustments to the air supply and operating 
pressure such that the maximum possible sound attenuation performance 
of the bubble curtain(s) is achieved.
    (iii) The lowest bubble ring must be in contact with the seafloor 
for the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact.
    (iv) No parts of the ring or other objects may prevent full 
seafloor contact.
    (v) Construction contractors must train personnel in the proper 
balancing of airflow to the ring. Construction contractors must submit 
an inspection/performance report for approval by Ocean Wind within 72 
hours following the performance test. Corrections to the bubble ring(s) 
to meet the performance

[[Page 65001]]

standards must occur prior to impact pile driving of monopiles. If 
Ocean Wind uses a noise mitigation device in addition to the BBC, Ocean 
Wind must maintain similar quality control measures as described here.
    (3) Sound field verification. (i) Ocean Wind must perform sound 
field verification (SFV) during all impact pile driving of the first 
three monopiles and a full jacket foundation (16 total pin piles) and 
must empirically determine source levels (peak and cumulative sound 
exposure level), the ranges to the isopleths corresponding to the Level 
A harassment (permanent threshold shifts (PTS)) and Level B harassment 
(temporary threshold shifts (TTS)) thresholds, and estimated 
transmission loss coefficients.
    (ii) If a subsequent monopile and pin pile installation and 
location is selected that was not represented by previous three 
locations (i.e., substrate composition, water depth), SFV must be 
conducted.
    (iii) Ocean Wind must measure received levels at a standard 
distance of 750 m from the monopiles and pin piles.
    (iv) If SFV measurements on any of the first three piles indicate 
that the ranges to Level A harassment and Level B harassment isopleths 
are larger than those modeled, assuming 10-dB attenuation, Ocean Wind 
must modify and/or apply additional noise attenuation measures (e.g., 
improve efficiency of bubble curtain(s), modify the piling schedule to 
reduce the source sound, install an additional noise attenuation 
device) before the second pile is installed. Until SFV confirms the 
ranges to Level A harassment and Level B harassment isopleths are less 
than or equal to those modeled, assuming 10-dB attenuation, the 
shutdown and clearance zones must be expanded to match the ranges to 
the Level A harassment and Level B harassment isopleths based on the 
SFV measurements. If the application/use of additional noise 
attenuation measures still does not achieve ranges less than or equal 
to those modeled, assuming 10-dB attenuation, and no other actions can 
further reduce sound levels, Ocean Wind must expand the clearance and 
shutdown zones according to those identified through SFV, in 
consultation with NMFS.
    (v) If acoustic measurements indicate that ranges to isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds are less than the ranges predicted by modeling (assuming 10 
dB attenuation), Ocean Wind may request a modification of the clearance 
and shutdown zones for impact pile driving of monopiles and pin piles. 
For a modification request to be considered by NMFS, Ocean Wind must 
have conducted SFV on three or more monopiles and at least one entire 
jacket foundation (16 pin piles) to verify that zone sizes are 
consistently smaller than predicted by modeling (assuming 10 dB 
attenuation).
    (vi) Ocean Wind must submit a SFV Plan at least 180 days prior to 
the planned start of impact pile driving. The plan would describe how 
Ocean Wind would ensure that the first three monopile and jacket 
foundation installation sites selected for SFV are representative of 
the rest of the monopile and pin pile installation. In the case that 
these sites are not determined to be representative of all other 
monopile and pin pile installation sites, Ocean Wind must include 
information on how additional sites would be selected for SFV. The plan 
must also include methodology for collecting, analyzing, and preparing 
SFV data for submission to NMFS. The plan must describe how the 
effectiveness of the sound attenuation methodology would be evaluated 
based on the results. Ocean Wind must also provide, as soon as they are 
available but no later than 48 hours after each installation, the 
initial results of the SFV measurements to NMFS in an interim report 
after each monopile for the first three piles and pin pile installation 
for the first full jacket foundation (16 pin piles).
    (4) PSO and PAM use. (i) Ocean Wind must have a minimum of four 
PSOs actively observing marine mammals before, during, and after 
(specific times described in this paragraph (d)(4)) the installation of 
foundation piles (monopiles and/or pin piles). At least four PSOs must 
be actively observing for marine mammals. At least two PSOs must be 
actively observing on the pile driving vessel while at least two PSOs 
must be actively observing on a secondary, PSO-dedicated vessel. At 
least one active PSO on each platform must have a minimum of 90 days 
at-sea experience working in those roles in offshore environments with 
no more than 18 months elapsed since the conclusion of the at-sea 
experience. Concurrently, at least one acoustic PSO (i.e., PAM 
operator) must be actively monitoring for marine mammals before, during 
and after impact pile driving.
    (ii) All visual PSOs and PAM operators used for the Ocean Wind 
project must meet the requirements and qualifications described in 
Sec.  217.265(a), (b), and (c), respectively, and as applicable to the 
specified activity.
    (5) Clearance and shutdown zones. (i) Ocean Wind must establish and 
implement clearance and shutdown zones (all distances to the perimeter 
are the radii from the center of the pile being driven) as described in 
the LOA for all WTG and OSS foundation installation.
    (ii) Ocean Wind must use visual PSOs and PAM operators to monitor 
the area around each foundation pile before, during and after pile 
driving. PSOs must visually monitor clearance zones for marine mammals 
for a minimum of 60 minutes prior to commencing pile driving. Acoustic 
PSOs (at least one PAM operator) must review data from at least 24 
hours prior to pile driving and actively monitor hydrophones for 60 
minutes prior to pile driving. Prior to initiating soft-start 
procedures, all clearance zones must be visually confirmed to be free 
of marine mammals for 30 minutes immediately prior to starting a soft-
start of pile driving.
    (iii) PSOs must be able to visually clear (i.e., confirm no marine 
mammals are present) an area that extends around the pile being driven 
as described in the LOA. The entire minimum visibility zone must be 
visible (i.e., not obscured by dark, rain, fog, etc.) for a full 30 
minutes immediately prior to commencing impact pile driving (based on 
season; summer and winter minimum visibility zones). Clearance zones 
extending beyond this minimum visibility zone may be cleared using both 
visual and acoustic methods.
    (iv) If a marine mammal is observed entering or within the relevant 
clearance zone prior to the initiation of impact pile driving 
activities, pile driving must be delayed and must not begin until 
either the marine mammal(s) has voluntarily left the specific clearance 
zones and have been visually or acoustically confirmed beyond that 
clearance zone, or, when specific time periods have elapsed with no 
further sightings or acoustic detections have occurred (i.e., 15 
minutes for small odontocetes and 30 minutes for all other marine 
mammal species).
    (v) The clearance zone may only be declared clear if no confirmed 
North Atlantic right whale acoustic detections (in addition to visual) 
have occurred during the 60-minute monitoring period. Any large whale 
sighting by a PSO or detected by a PAM operator that cannot be 
identified as a non-North Atlantic right whale must be treated as if it 
were a North Atlantic right whale.
    (vi) If a marine mammal is observed entering or within the 
respective shutdown zone, as defined in the LOA, after impact pile 
driving has begun, the

[[Page 65002]]

PSO must call for a temporary cessation of impact pile driving.
    (vii) Ocean Wind must immediately cease pile driving upon orders of 
the PSO unless shutdown is not practicable due to imminent risk of 
injury or loss of life to an individual, pile refusal, or pile 
instability. In this situation, reduced hammer energy must be 
implemented instead, as determined to be practicable.
    (viii) Pile driving must not restart until either the marine 
mammal(s) has voluntarily left the specific clearance zones and has 
been visually or acoustically confirmed beyond that clearance zone, or, 
when specific time periods have elapsed with no further sightings or 
acoustic detections have occurred. The specific time periods are 15 
minutes for small odontocetes and 30 minutes for all other marine 
mammal species. In cases where these criteria are not met, pile driving 
may restart only if necessary to maintain pile stability at which time 
the lowest hammer energy must be used to maintain stability.
    (ix) If impact pile driving has been shut down due to the presence 
of a North Atlantic right whale, pile driving may not restart until the 
North Atlantic right whale is no longer observed or 30 minutes has 
elapsed since the last detection.
    (x) Upon re-starting pile driving, soft start protocols must be 
followed.
    (6) Soft start. (i) Ocean Wind must utilize a soft start protocol 
for impact pile driving of monopiles by performing 4-6 strikes per 
minute at 10 to 20 percent of the maximum hammer energy, for a minimum 
of 20 minutes.
    (ii) Soft start must occur at the beginning of monopile 
installation and at any time following a cessation of impact pile 
driving of 30 minutes or longer.
    (iii) If a marine mammal is detected within or about to enter the 
applicable clearance zones, prior to the beginning of soft-start 
procedures, impact pile driving would be delayed until the animal has 
been visually observed exiting the clearance zone or until a specific 
time period has elapsed with no further sightings. The specific time 
periods are 15 minutes for small odontocetes and 30 minutes for all 
other species.
    (e) Cofferdam installation--(1) Seasonal and daily restrictions. 
(i) Ocean Wind must only conduct cofferdam installation/removal from 
October through March, although some removal shall also be allowed to 
occur in April or May.
    (ii) Ocean Wind must conduct vibratory pile driving associated with 
cofferdam installation and removal during daylight hours only.
    (2) PSO use. (i) All visual PSOs used for the Ocean Wind project 
must meet the requirements and qualifications described in Sec.  
217.265(a) and (b), as applicable to the specified activity.
    (ii) Ocean Wind must have a minimum of two PSOs on active duty 
during any installation and removal of the temporary cofferdams. These 
PSOs would always be located at the best vantage point(s) on the 
vibratory pile driving platform or secondary platform in the immediate 
vicinity of the vibratory pile driving platform, in order to ensure 
that appropriate visual coverage is available of the entire visual 
clearance zone and as much of the Level B harassment zone, as possible.
    (3) Clearance and shutdown zones. (i) Ocean Wind must establish and 
implement clearance and shutdown zones as described in the LOA.
    (ii) Prior to the start of vibratory pile driving activities, at 
least two PSOs must monitor the clearance zone for 30 minutes, continue 
monitoring during pile driving and for 30 minutes post pile driving.
    (iii) If a marine mammal is observed entering or is observed within 
the clearance zones, piling must not commence until the animal has 
exited the zone or a specific amount of time has elapsed since the last 
sighting. The specific amount of time is 30 minutes for large whales 
and 15 minutes for dolphins, porpoises, and pinnipeds.
    (iv) If a marine mammal is observed entering or within the 
respective shutdown zone, as defined in the LOA, after vibratory pile 
driving has begun, the PSO must call for a temporary cessation of 
vibratory pile driving.
    (v) Ocean Wind must immediately cease pile driving upon orders of 
the PSO unless shutdown is not practicable due to imminent risk of 
injury or loss of life to an individual, pile refusal, or pile 
instability.
    (vi) Pile driving must not restart until either the marine 
mammal(s) has voluntarily left the specific clearance zones and have 
been visually or acoustically confirmed beyond that clearance zone, or, 
when specific time periods have elapsed with no further sightings or 
acoustic detections have occurred. The specific time periods are 15 
minutes for small odontocetes and 30 minutes for all other marine 
mammal species.
    (f) UXO/MEC detonation(s)--(1) General. (i) Ocean Wind shall only 
detonate a maximum of 10 UXO/MECs, of varying sizes, during the entire 
effective period of this subpart and LOA.
    (ii) Upon encountering a UXO/MEC of concern, Ocean Wind may only 
resort to high-order removal (i.e., detonation) after all other means 
by which to remove the UXO/MEC have been exhausted. Ocean Wind must not 
detonate a UXO/MEC if another means of removal is practicable.
    (iii) Ocean Wind must utilize a noise abatement system (e.g., 
bubble curtain or similar noise abatement device) around all UXO/MEC 
detonations and operate that system in a manner that achieves maximum 
noise attenuation levels practicable.
    (2) Seasonal and daily restrictions. (i) Ocean Wind must not 
detonate UXOs/MECs from November 1st through April 31st, annually.
    (ii) Ocean Wind must only detonate UXO/MECs during daylight hours.
    (3) PSO and PAM use. (i) All visual PSOs and PAM operators used for 
the Ocean Wind project must meet the requirements and qualifications 
described in Sec.  217.265(a), (b), and (c), respectively, and as 
applicable to the specified activity.
    (ii) Ocean Wind must use at least six visual PSOs and one acoustic 
PSO to clear the area prior to detonation. These PSOs would be located 
on at least two dedicated PSO vessels or, if the largest clearance zone 
is greater than 5 km, one dedicated PSO vessel and one aerial platform 
(i.e., airplane).
    (4) Clearance zones. (i) Ocean Wind must establish and implement 
clearance zones using both visual and acoustic monitoring, as described 
in the LOA.
    (ii) Clearance zones must be fully visible for at least 60 minutes 
and all marine mammal(s) must be confirmed to be outside of the 
clearance zone for at least 30 minutes prior to detonation. PAM must 
also be conducted for at least 60 minutes and the zone must be 
acoustically cleared during this time.
    (iii) If a marine mammal is observed entering or within the 
clearance zone prior to denotation, the activity must be delayed. 
Detonation may only commence if all marine mammals have been confirmed 
to have voluntarily left the clearance zones and been visually 
confirmed to be beyond the clearance zone, or when 60 minutes have 
elapsed without any redetections for whales (including the North 
Atlantic right whale) or 15 minutes have elapsed without any 
redetections of delphinids, harbor porpoises, or seals.
    (5) Sound field verification. (i) During each UXO/MEC detonation, 
Ocean Wind must empirically determine source levels (peak and 
cumulative sound exposure level), the ranges to the isopleths 
corresponding to the Level A harassment and Level B harassment

[[Page 65003]]

thresholds, and estimated transmission loss coefficient(s).
    (ii) If SFV measurements on any of the detonations indicate that 
the ranges to Level A harassment and Level B harassment thresholds are 
larger than those modeled, assuming 10-dB attenuation, Ocean Wind must 
modify the ranges, with approval from NMFS, and/or apply additional 
noise attenuation measures (e.g., improve efficiency of bubble 
curtain(s), install an additional noise attenuation device) before the 
next detonation event.
    (g) HRG surveys--(1) General. (i) All personnel with 
responsibilities for marine mammal monitoring must participate in 
joint, onboard briefings that would be led by the vessel operator and 
the Lead PSO, prior to the beginning of survey activities. The briefing 
must be repeated whenever new relevant personnel (e.g., new PSOs, 
acoustic source operators, relevant crew) join the survey operation 
before work commences.
    (ii) Ocean Wind must deactivate acoustic sources during periods 
where no data is being collected, except as determined to be necessary 
for testing. Any unnecessary use of the acoustic source(s) must be 
avoided.
    (iii) Ocean Wind must instruct all vessel personnel regarding the 
authority of the marine mammal monitoring team(s). For example, the 
vessel operator(s) would be required to immediately comply with any 
call for a shutdown by the Lead PSO. Any disagreement between the Lead 
PSO and the vessel operator would only be discussed after shutdown has 
occurred.
    (iv) Any large whale sighted by a PSO within 1 km of the boomer, 
sparker, or Compressed High-Intensity Radiated Pulse (CHIRP) that 
cannot be identified as a non-North Atlantic right whale must be 
treated as if it were a North Atlantic right whale.
    (2) PSO use. (i) Ocean Wind must use at least one PSO during 
daylight hours and two PSOs during nighttime operations, per vessel. 
Any PSO shall have the authority to call for a delay or shutdown of the 
survey activities.
    (ii) PSOs must establish and monitor the appropriate clearance and 
shutdown zones (i.e., radial distances from the acoustic source in-use 
and not from the vessel).
    (iii) PSOs must begin visually monitoring 30 minutes prior to the 
initiation of the specified acoustic source (i.e., ramp-up, if 
applicable), through 30 minutes after the use of the specified acoustic 
source has ceased.
    (3) Ramp-up. (i) Any ramp-up activities of boomers, sparkers, and 
CHIRPs must only commence when visual clearance zones are fully visible 
(e.g., not obscured by darkness, rain, fog, etc.) and clear of marine 
mammals, as determined by the Lead PSO, for at least 30 minutes 
immediately prior to the initiation of survey activities using a 
specified acoustic source.
    (ii) Prior to starting the survey and after receiving confirmation 
from the PSOs that the clearance zone is clear of any marine mammals, 
Ocean Wind must ramp-up sources to half power for 5 minutes and then 
proceed to full power, unless the source operates on a binary on/off 
switch in which case ramp-up is not feasible. Ramp-up activities would 
be delayed if a marine mammal(s) enters its respective shutdown zone. 
Ramp-up would only be reinitiated if the animal(s) has been observed 
exiting its respective shutdown zone or until additional time has 
elapsed with no further sighting. The specific time periods are 15 
minutes for small odontocetes and seals, and 30 minutes for all other 
species.
    (4) Clearance and shutdown zones. (i) Ocean Wind must establish and 
implement clearance zones as described in the LOA.
    (ii) Ocean Wind must implement a 30-minute clearance period of the 
clearance zones immediately prior to the commencing of the survey or 
when there is more than a 30 minute break in survey activities and PSOs 
are not actively monitoring.
    (iii) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up would not be allowed to begin until the 
animal(s) has been observed voluntarily exiting its respective 
clearance zone or until an additional time period has elapsed with no 
further sighting (i.e., 15 minutes for small odontocetes and seals, and 
30 minutes for all other species).
    (iv) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(IR/thermal camera), and the Lead PSO has determined that the clearance 
zones are clear of marine mammals, survey operations would be allowed 
to commence (i.e., no delay is required) despite periods of inclement 
weather and/or loss of daylight.
    (v) Once the survey has commenced, Ocean Wind must shut down 
boomers, sparkers, and CHIRPs if a marine mammal enters a respective 
shutdown zone.
    (vi) In cases when the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations would be allowed to 
continue (i.e., no shutdown is required) so long as no marine mammals 
have been detected.
    (vii) The use of boomers, sparkers, and CHIRPS would not be allowed 
to commence or resume until the animal(s) has been confirmed to have 
left the Level B harassment zone or until a full 15 minutes (for small 
odontocetes and seals) or 30 minutes (for all other marine mammals) 
have elapsed with no further sighting.
    (viii) Ocean Wind must immediately shutdown any boomer, sparker, or 
CHIRP acoustic source if a marine mammal is sighted entering or within 
its respective shutdown zones (500 m for North Atlantic right whale; 
100 m for all other marine mammals, except for those specified here). 
The shutdown requirement does not apply to small delphinids of the 
following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If 
there is uncertainty regarding the identification of a marine mammal 
species (i.e., whether the observed marine mammal belongs to one of the 
delphinid genera for which shutdown is waived), the PSOs must use their 
best professional judgment in making the decision to call for a 
shutdown. Shutdown is required if a delphinid that belongs to a genus 
other than those specified here is detected in the shutdown zone.
    (ix) If a boomer, sparker, or CHIRP is shut down for reasons other 
than mitigation (e.g., mechanical difficulty) for less than 30 minutes, 
it would be allowed to be activated again without ramp-up only if:
    (A) PSOs have maintained constant observation; and
    (B) No additional detections of any marine mammal occurred within 
the respective shutdown zones.
    (x) If a boomer, sparker, or CHIRP was shut down for a period 
longer than 30 minutes, then all clearance and ramp-up procedures must 
be initiated.


Sec.  217.265  Requirements for monitoring and reporting.

    (a) PSO qualifications. (1) Ocean Wind must employ qualified, 
trained visual and acoustic PSOs to conduct marine mammal monitoring 
during activities associated with construction. PSO requirements are as 
follows:
    (i) Ocean Wind must use independent, dedicated, qualified PSOs, 
meaning that the PSOs must be employed by a third-party observer 
provider, must have no tasks other than to conduct observational 
effort, collect data, and communicate with and instruct relevant vessel 
crew with regard to the presence of protected species and mitigation 
requirements;

[[Page 65004]]

    (ii) All PSOs must be approved by NMFS. Ocean Wind must submit PSO 
resumes for NMFS' review and approval at least 60 days prior to 
commencement of in-water construction activities requiring PSOs. 
Resumes must include dates of training and any prior NMFS approval, as 
well as dates and description of last experience, and must be 
accompanied by information documenting successful completion of an 
acceptable training course. NMFS shall be allowed 3 weeks to approve 
PSOs from the time that the necessary information is received by NMFS, 
after which PSOs meeting the minimum requirements must automatically be 
considered approved;
    (iii) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving towards 
the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable);
    (iv) All PSOs must be trained in marine mammal identification and 
behaviors and must be able to conduct field observations and collect 
data according to assigned protocols. Additionally, PSOs must have the 
ability to work with all required and relevant software and equipment 
necessary during observations;
    (v) PSOs must have sufficient writing skills to document all 
observations, including but not limited to:
    (A) The number and species of marine mammals observed;
    (B) The dates and times of when in-water construction activities 
were conducted;
    (C) The dates and time when in-water construction activities were 
suspended to avoid potential incidental injury of marine mammals from 
construction noise within a defined shutdown zone; and
    (D) Marine mammal behavior;
    (vi) All PSOs must be able to communicate orally, by radio, or in-
person with Ocean Wind project personnel;
    (vii) PSOs must have sufficient training, orientation, or 
experience with construction operations to provide for their own 
personal safety during observations;
    (A) All PSOs must complete a Permits and Environmental Compliance 
Plan training and a 2-day refresher session that will be held with the 
PSO provider and Project compliance representative(s) prior to the 
start of construction activities.
    (B) [Reserved]
    (viii) At least one PSO must have prior experience working as an 
observer. Other PSOs may substitute education (i.e., degree in 
biological science or related field) or training for experience;
    (ix) One PSO for each activity (i.e., foundation installation, 
cofferdam installation, HRG surveys, UXO/MEC detonation) must be 
designated as the ``Lead PSO.'' The Lead PSO must demonstrate prior 
experience working as a PSO in offshore environments, specifically with 
prior experience observing mysticetes, odontocetes, and pinnipeds in 
the Northwestern Atlantic Ocean;
    (x) At a minimum, two of the PSOs located on observation platforms 
(either vessel-based or aerial-based) must have a minimum of 90 days of 
at-sea experience and must have had this at-sea experience within the 
last 18 months. Any new and/or inexperienced PSOs would be paired with 
an experienced PSO;
    (xi) PSOs must not exceed 4 consecutive watch hours, must have a 
minimum break of 2 hours, and must not exceed a total watch schedule of 
more than 12 hours within any 24-hour period;
    (xii) PSOs must monitor all clearance and shutdown zones prior to, 
during, and following impact pile driving, vibratory pile driving, UXO/
MEC detonations, and during HRG surveys that use boomers, sparkers, and 
CHIRPs with specific monitoring durations described in paragraph 
(b)(1)(ii) of this section. PSOs must also monitor the Level B 
harassment zones and document any marine mammals observed within these 
zones, to the extent practicable;
    (xiii) PSOs must be located on the best available vantage point(s) 
on the primary vessel(s) (i.e., pile driving vessel, UXO/MEC vessel, 
HRG survey vessel) and on other dedicated PSO vessels (e.g., additional 
UXO/MEC vessels) or aerial platforms, as applicable and necessary, to 
allow them appropriate coverage of the entire visual shutdown zone(s), 
clearance zone(s), and as much of the Level B harassment zone as 
possible. These vantage points must maintain a safe work environment; 
and
    (xiv) Acoustic PSOs are required to complete specialized training 
for operating PAM systems and must demonstrate familiarity with the PAM 
system on which they must be working. PSOs may act as both acoustic and 
visual observers (but not simultaneously), so long as they demonstrate 
that their training and experience are sufficient to perform each task.
    (A) All PAM operators must complete a Permits and Environmental 
Compliance Plan training and a 2-day refresher session that will be 
held with the PSO/PAM operator provider and Project compliance 
representative(s) prior to the start of construction activities.
    (B) [Reserved]
    (b) PSO requirements--(1) General. (i) All PSOs must be located at 
the best vantage point(s) primary vessel and any dedicated PSO vessels 
in order to ensure 360[deg] visual coverage of the entire clearance and 
shutdown zones around the vessels, and as much of the Level B 
harassment zone as possible. During UXO/MEC detonation events, 
monitoring from an aerial platform would also be required.
    (ii) During all observation periods, PSOs must use high 
magnification (25x) binoculars, standard handheld (7x) binoculars, and 
the naked eye to search continuously for marine mammals. During impact 
pile driving and UXO/MEC detonation events, at least one PSO on the 
primary pile driving or UXO/MEC vessel must be equipped with Big Eye 
binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; 
height control) of appropriate quality. These must be pedestal mounted 
on the deck at the most appropriate vantage point that provides for 
optimal sea surface observation and PSO safety.
    (iii) PSOs must not exceed four consecutive watch hours on duty at 
any time, must have a 2-hour (minimum) break between watches, and must 
not exceed a combined watch schedule of more than 12 hours in a 24-hour 
period.
    (2) WTG and OSS foundation installation. (i) At least four PSOs 
must be actively observing marine mammals before, during, and after 
installation of foundation piles (monopiles and/or pin piles). At least 
two PSOs must be stationed and observing on the pile driving vessel and 
at least two PSOs must be stationed on a secondary, PSO-dedicated 
vessel. Concurrently, at least one acoustic PSO (i.e., PAM operator) 
must be actively monitoring for marine mammals with PAM before, during 
and after impact pile driving.
    (ii) If PSOs cannot visually monitor the minimum visibility zone at 
all times using the equipment described in paragraph (b)(1)(ii) of this 
section or approved alternative equipment, impact pile driving 
operations must not commence or must shutdown if they are currently 
active.
    (iii) All PSOs, including PAM operators, must begin monitoring 60 
minutes prior to pile driving, during, and for 30 minutes after an 
activity. The impact pile driving of both monopiles and/or pin piles 
must only commence when the minimum visibility zone is fully visible 
(e.g., not obscured by

[[Page 65005]]

darkness, rain, fog, etc.) and the clearance zones are clear of marine 
mammals for at least 30 minutes, as determined by the Lead PSO, 
immediately prior to the initiation of impact pile driving.
    (iv) For North Atlantic right whales, any visual or acoustic 
detection must trigger a delay to the commencement of pile driving. In 
the event that a large whale is sighted or acoustically detected that 
cannot be confirmed as a non-North Atlantic right whale species, it 
must be treated as if it were a North Atlantic right whale.
    (v) Following a shutdown, monopile and/or pin pile installation 
must not recommence until the minimum visibility zone is fully visible 
and clear of marine mammals for 30 minutes.
    (3) Cofferdam installation and removal. (i) At least two PSOs must 
be on active duty during all activities related to the installation and 
removal of cofferdams.
    (ii) These PSOs must be located at appropriate vantage points on 
the vibratory pile driving platform or secondary platform in the 
immediate vicinity of the vibratory pile driving platform.
    (iii) PSOs must ensure that there is appropriate visual coverage 
for the entire clearance zone and as much of the Level B harassment 
zone as possible.
    (iv) PSOs must monitor the clearance zone for the presence of 
marine mammals for 30 minutes before, throughout the installation of 
the sheet piles (and casing pipe, if installed), and for 30 minutes 
after all vibratory pile driving activities have ceased. Sheet pile or 
casing pipe installation shall only commence when visual clearance 
zones are fully visible (e.g., not obscured by darkness, rain, fog, 
etc.) and clear of marine mammals, as determined by the Lead PSO, for 
at least 30 minutes immediately prior to initiation of impact or 
vibratory pile driving.
    (4) UXO/MEC detonations. (i) At least six PSOs must be on active 
duty prior to, during, and after UXO/MEC detonations and must be 
located on at least two dedicated PSO vessels. Two PSOs must also be on 
the airplane during aerial surveys and must monitor for marine mammals 
before, during, and after UXO/MEC detonation events.
    (ii) All PSOs, including PAM operators, must begin monitoring 60 
minutes prior to UXO/MEC detonation, during, and for 30 minutes after 
an activity.
    (iii) For detonation areas larger than 2 km, Ocean Wind must use a 
secondary vessel to monitor. For any additional vessels determined to 
be necessary, two PSOs must be used and located at the appropriate 
vantage point on the vessel. These additional PSOs would maintain watch 
during the same time period as the PSOs on the primary monitoring 
vessel. Prior to, during, and after any detonation occurring, Ocean 
Wind must ensure that these clearance zones are fully (100 percent) 
monitored.
    (5) HRG surveys. (i) Between four and six PSOs would be present on 
every 24-hour survey vessel and two to three PSOs would be present on 
every 12-hour survey vessel. At least one PSO must be on active duty 
during HRG surveys conducted during daylight and at least two PSOs must 
be on activity duty during HRG surveys conducted at night.
    (ii) During periods of low visibility (e.g., darkness, rain, fog, 
etc.), PSOs must use alternative technology (i.e., infrared/thermal 
camera) to monitor the clearance and shutdown zones.
    (iii) PSOs on HRG vessels must begin monitoring 30 minutes prior to 
activating boomers, sparkers, or CHIRPs, during, and 30 minutes after 
use of those sources has ceased.
    (iv) Any observations of marine mammals must be communicated to 
PSOs on all nearby survey vessels during concurrent HRG surveys.
    (v) During daylight hours when survey equipment is not operating, 
Ocean Wind must ensure that visual PSOs conduct, as rotation schedules 
allow, observations for comparison of sighting rates and behavior with 
and without use of the specified acoustic sources. Off-effort PSO 
monitoring must be reflected in the monthly PSO monitoring reports.
    (c) PAM operator requirements--(1) General. (i) PAM operators must 
have completed specialized training for operating PAM systems prior to 
the start of monitoring activities, including identification of 
species-specific mysticete vocalizations.
    (ii) During use of any real-time PAM system, at least one PAM 
operator must be designated to monitor each system by viewing data or 
data products that would be streamed in real-time or in near real-time 
to a computer workstation and monitor.
    (iii) PAM operators may be located on a vessel or remotely on-shore 
but must have the appropriate equipment available wherever they are 
stationed.
    (iv) Visual PSOs must remain in contact with the PAM operator 
currently on duty regarding any animal detection that would be 
approaching or found within the applicable zones no matter where the 
PAM operator is stationed (i.e., onshore or on a vessel).
    (v) The PAM operator must inform the Lead PSO on duty of animal 
detections approaching or within applicable ranges of interest to the 
pile driving activity via the data collection software system (i.e., 
Mysticetus or similar system) who will be responsible for requesting 
the designated crewmember to implement the necessary mitigation 
procedures.
    (vi) PAM operators must be on watch for a maximum of 4 consecutive 
hours, followed by a break of at least 2 hours between watches.
    (vii) A Passive Acoustic Monitoring Plan must be submitted to NMFS 
for review and approval at least 180 days prior to the planned start of 
monopile and/or pin pile installation.
    (2) WTG and OSS foundation installation. (i) Ocean Wind must use a 
minimum of one PAM operator before, during, and after impact pile 
driving activities commence. The PAM operator must assist visual PSOs 
in ensuring full coverage of the clearance and shutdown zones.
    (ii) PAM operators must assist the visual PSOs in monitoring by 
beginning PAM activities 60 minutes prior to any impact pile driving, 
during, and after for 30 minutes for the appropriate distance (based on 
season). The entire minimum visibility zone must be clear for at least 
30 minutes with no marine mammal detections prior to the start of 
impact pile driving.
    (iii) Any acoustic monitoring during low visibility conditions 
during the day would complement visual monitoring efforts and would 
cover an area of at least the Level B harassment zone around each 
monopile or pin pile foundation.
    (iv) Any visual or acoustic detection must trigger a delay to the 
commencement of pile driving. In the event that a large whale is 
sighted or acoustically detected that cannot be confirmed as a non-
North Atlantic right whale species, it must be treated as if it were a 
North Atlantic right whale. Following a shutdown, monopile and/or pin 
pile installation shall not recommence until the minimum visibility 
zone is fully visible and clear of marine mammals for 30 minutes.
    (3) UXO/MEC detonation(s). (i) Ocean Wind must use a minimum of one 
PAM operator on one of two dedicated PSO vessels for monitoring during 
daylight UXO/MEC detonation(s).
    (ii) PAM must be conducted for at least 60 minutes prior to 
detonation, during, and for 30 minutes after detonation and the zone 
must be acoustically clear during this entire duration.

[[Page 65006]]

    (iii) The PAM operator must monitor to and past the clearance zone 
for large whales.
    (d) Data collection and reporting. (1) Prior to initiation of 
project activities, Ocean Wind must demonstrate in a report submitted 
to NMFS (at [email protected] and [email protected]) 
that all required training for Ocean Wind personnel (including the 
vessel crews, vessel captains, PSOs, and PAM operators) has been 
completed.
    (2) Ocean Wind must use a standardized reporting system during the 
effective period of the regulations in this subpart and LOA. All data 
collected related to the Ocean Wind 1 project must be recorded using 
industry-standard software (e.g., Mysticetus or a similar software) 
that is installed on field laptops and/or tablets. Ocean Wind must 
collect the following information during activities requiring PSOs:
    (i) Date and time that monitored activity begins or ends;
    (ii) Construction activities occurring during each observation 
period;
    (iii) Watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
    (iv) PSO who sighted the animal;
    (v) Time of sighting;
    (vi) Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
    (vii) Water conditions (e.g., sea state, tide state, water depth);
    (viii) All marine mammal sightings, regardless of distance from the 
construction activity;
    (ix) Species (or lowest possible taxonomic level possible)
    (x) Pace of the animal(s);
    (xi) Estimated number of animals (minimum/maximum/high/low/best);
    (xii) Estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.);
    (xiii) Description (i.e., as many distinguishing features as 
possible of each individual seen, including length, shape, color, 
pattern, scars or markings, shape and size of dorsal fin, shape of 
head, and blow characteristics);
    (xiv) Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling) and observed 
changes in behavior, including an assessment of behavioral responses 
thought to have resulted from the specific activity;
    (xv) Animal's closest distance and bearing from the pile being 
driven, UXO/MEC, or specified HRG equipment and estimated time entered 
or spent within the Level A harassment and/or Level B harassment zones;
    (xvi) Construction activity at time of sighting (e.g., vibratory 
installation/removal, impact pile driving, UXO/MEC detonation, 
construction survey), use of any noise attenuation device(s), and 
specific phase of activity (e.g., ramp-up of HRG equipment, HRG 
acoustic source on/off, soft start for pile driving, active pile 
driving, post-UXO/MEC detonation, etc.);
    (xvii) Description of any mitigation-related action implemented, or 
mitigation-related actions called for but not implemented, in response 
to the sighting (e.g., delay, shutdown, etc.) and time and location of 
the action; and
    (xviii) Other human activity in the area.
    (3) For all marine mammal sightings by PSOs, the following 
information must also be collected and reported to NMFS:
    (i) Identification of the animal(s) (i.e., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
    (ii) Pace of the animal(s);
    (iii) Estimated number of animals (high/low/best);
    (iv) Estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.);
    (v) Description (i.e., as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    (vi) Description of any observations of marine mammal behavior 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, or breaching);
    (vii) Animal's closest distance from the pile being driven or 
specified HRG equipment and estimated time spent within the Level A 
harassment and/or Level B harassment zones;
    (viii) Construction activity at time of sighting (e.g., vibratory 
installation/removal, impact pile driving, construction survey), use of 
any noise attenuation device, and specific phase of activity (e.g., 
ramp-up HRG equipment, HRG acoustic source on/off, soft start for pile 
driving, active pile driving, etc.);
    (ix) Distance and bearing to each marine mammal observed;
    (x) Description of any mitigation-related actions implemented, or 
mitigation-relation actions called for but not implemented, in response 
to the sighting (e.g., delay, shutdown, etc.) and time and location of 
the action;
    (xi) Watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
    (xii) PSO who sighted the animal;
    (xiii) Time of sighting;
    (xiv) Location of sighting;
    (xv) Water depth;
    (xvi) Sea state and weather; and
    (xvii) Marine mammal occurrence within relevant Level A harassment 
or Level B harassment zones.
    (4) For all real-time acoustic detections of marine mammals, the 
following must be recorded and included in weekly, monthly, annual, and 
final reports:
    (i) Location of hydrophone (latitude & longitude; in Decimal 
Degrees) and site name;
    (ii) Bottom depth and depth of recording unit (in meters);
    (iii) Recorder (model & manufacturer) and platform type (i.e., 
bottom-mounted, electric glider, etc.), and instrument ID of the 
hydrophone and recording platform (if applicable);
    (iv) Time zone for sound files and recorded date/times in data and 
metadata (in relation to UTC. i.e., EST time zone is UTC-5);
    (v) Duration of recordings (start/end dates and times; in ISO 8601 
format, yyyy-mm-ddTHH:MM:SS.sssZ);
    (vi) Deployment/retrieval dates and times (in ISO 8601 format);
    (vii) Recording schedule (must be continuous);
    (viii) Hydrophone and recorder sensitivity (in dB re. 1 [mu]Pa);
    (ix) Calibration curve for each recorder;
    (x) Bandwidth/sampling rate (in Hz);
    (xi) Sample bit-rate of recordings; and,
    (xii) Detection range of equipment for relevant frequency bands (in 
meters).
    (5) For each detection, the following information must be noted:
    (i) Species identification (if possible);
    (ii) Call type and number of calls (if known);
    (iii) Temporal aspects of vocalization (date, time, duration, etc., 
date times in ISO 8601 format);
    (iv) Confidence of detection (detected, or possibly detected);
    (v) Comparison with any concurrent visual sightings;
    (vi) Location and/or directionality of call (if determined) 
relative to acoustic recorder or construction activities;
    (vii) Location of recorder and construction activities at time of 
call;
    (viii) Name and version of detection or sound analysis software 
used, with protocol reference;
    (ix) Minimum and maximum frequencies viewed/monitored/used in 
detection (in Hz); and,
    (x) Name of PAM operator(s) on duty.

[[Page 65007]]

    (6) Ocean Wind must compile and submit weekly PSO and PAM reports 
to NMFS (at [email protected] and [email protected]) 
that document the daily start and stop of all pile driving, HRG survey, 
or UXO/MEC detonation activities, the start and stop of associated 
observation periods by PSOs, details on the deployment of PSOs, a 
record of all detections of marine mammals, any mitigation actions (or 
if mitigation actions could not be taken, provide reasons why), and 
details on the noise attenuation system(s) used and its performance. 
Weekly reports are due on Wednesday for the previous week (Sunday-
Saturday) and must include the information required under this section.
    (7) Ocean Wind must compile and submit monthly reports to NMFS (at 
[email protected] and [email protected]) that 
include a summary of all information in the weekly reports, including 
project activities carried out in the previous month, vessel transits 
(number, type of vessel, and route), number of piles installed, all 
detections of marine mammals, and any mitigative action taken. Monthly 
reports are due on the 15th of the month for the previous month. The 
report should note the location and date of any turbines that become 
operational.
    (8) Ocean Wind must submit an annual report to NMFS (at 
[email protected] and [email protected]) no later 
than 90 days following the end of a given calendar year. Ocean Wind 
must provide a final report within 30 days following resolution of 
comments on the draft report. The report must detail the following 
information:
    (A) The total number of marine mammals of each species/stock 
detected and how many were within the designated Level A harassment and 
Level B harassment zones with comparison to authorizes take of marine 
mammals for the associated activity type;
    (B) Marine mammal detections and behavioral observations before, 
during, and after each activity;
    (C) What mitigation measures were implemented (i.e., number of 
shutdowns or clearance zone delays, etc.) or, if no mitigative actions 
was taken, why not;
    (D) Operational details (i.e., days of impact and vibratory pile 
driving, days/amount of HRG survey effort, total number and charge 
weights related to UXO/MEC detonations, etc.);
    (E) Sound field verification results;
    (F) Any PAM systems used;
    (G) The results, effectiveness, and which noise abatement systems 
were used during relevant activities (i.e., impact pile driving, UXO/
MEC detonation);
    (H) Summarized information related to situational reporting (see 
paragraph (d)(12) of this section); and
    (I) Any other important information relevant to the Ocean Wind 1 
project, including additional information that may be identified 
through the adaptive management process.
    (ii) The final annual report must be prepared and submitted within 
30 calendar days following the receipt of any comments from NMFS on the 
draft report. If no comments are received from NMFS within 60 calendar 
days of NMFS' receipt of the draft report, the report must be 
considered final.
    (9) Ocean Wind must submit its draft final report(s) to NMFS (at 
[email protected] and [email protected]) on all 
visual and acoustic monitoring conducted under the LOA within 90 
calendar days of the completion of activities occurring under the LOA. 
A final report must be prepared and submitted within 30 calendar days 
following receipt of any NMFS comments on the draft report. If no 
comments are received from NMFS within 30 calendar days of NMFS' 
receipt of the draft report, the report shall be considered final.
    (10) By 90 days after the expiration of the rule, Ocean Wind must 
submit a final report to NMFS (at [email protected] and 
[email protected]) that summarizes all of the data 
contained within the annual reports. A final 5-year report would be 
prepared and submitted within 60 calendar days following receipt of any 
NMFS comments on the draft report. If no comments were received from 
NMFS within 60 calendar days of NMFS' receipt of the draft report, the 
report would be considered final.
    (11)(i) Ocean Wind must provide the initial results of the SFV 
measurements to NMFS in an interim report after each monopile and 
jacket foundation installation for the first three monopiles piles, 
completion of installing one jacket foundation, and for each UXO/MEC 
detonation as soon as they are available, but no later than 48 hours 
after each installation. Ocean Wind must also provide interim reports 
on any subsequent SFV on foundation piles within 48 hours. The interim 
report must include hammer energies used during pile driving or UXO/MEC 
weight (including donor charge weight), peak sound pressure level 
(SPLpk) and median, mean, maximum, and minimum root-mean-
square sound pressure level that contains 90 percent of the acoustic 
energy (SPLrms) and single strike sound exposure level 
(SELss); and
    (ii) The final results of SFV of monopile installations must be 
submitted as soon as possible, but no later than within 90 days 
following completion of impact pile driving of the three monopiles and 
jacket foundations and UXO/MEC data to date. The final report must 
include, at minimum, the following:
    (A) 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 
(SELss), integration time for SPLrms, 
SELss spectrum, and 24-hour cumulative SEL extrapolated from 
measurements at specified distances (e.g., 750 m). All these levels 
must be reported in the form of median, mean, maximum, and minimum. The 
SEL and SPL power spectral density and one-third octave band levels 
(usually calculated as decidecade band levels) at the receiver 
locations should be reported;
    (B) The sound levels reported must be in median and linear average 
(i.e., average in linear space), and in dB;
    (C) A description of depth and sediment type, as documented in the 
Construction and Operation Plan, at the recording and pile driving 
locations;
    (D) Hammer energies required for pile installation and the number 
of strikes per pile;
    (E) Hydrophone equipment and methods (i.e., recording device, 
bandwidth/sampling rate, distance from the pile where recordings were 
made; depth of recording device(s));
    (F) Description of the SFV PAM hardware and software, including 
software version used, calibration data, bandwidth capability and 
sensitivity of hydrophone(s), any filters used in hardware or software, 
any limitations with the equipment, and other relevant information;
    (G) Description of UXO/MEC, weight, including donor charge weight, 
and why detonation was necessary;
    (H) Local environmental conditions, such as wind speed, 
transmission loss data collected on-site (or the sound velocity 
profile), baseline pre- and post-activity ambient sound levels (broad-
band and/or within frequencies of concern);
    (I) Spatial configuration of the noise attenuation device(s) 
relative to the pile;
    (J) The extents of the Level A harassment and Level B harassment 
zones; and

[[Page 65008]]

    (K) A description of the noise attenuation devices and operational 
parameters (e.g., bubble flow rate, distance deployed from the pile, 
etc.) and any action taken to adjust noise attenuation devices.
    (12) Specific situations encountered during the development of 
Ocean Wind 1 shall require immediate reporting to be undertaken. These 
situations and the relevant procedures are described in paragraphs 
(d)(12)(i) through (v) of this section.
    (i) If a North Atlantic right whale is observed at any time by PSOs 
or personnel on or in the vicinity of any project vessel, or during 
vessel transit, Ocean Wind must immediately report sighting information 
to the NMFS North Atlantic Right Whale Sighting Advisory System (866) 
755-6622, through the WhaleAlert app (https://www.whalealert/org/), and 
to the U.S. Coast Guard via channel 16, as soon as feasible, but no 
longer than 24 hours after the sighting. Information reported must 
include, at a minimum: time of sighting, location, and number of North 
Atlantic right whales observed.
    (ii) When an observation of a marine mammal occurs during vessel 
transit, the following information must be recorded:
    (A) Time, date, and location;
    (B) The vessel's activity, heading, and speed;
    (C) Sea state, water depth, and visibility;
    (D) Marine mammal identification to the best of the observer's 
ability (e.g., North Atlantic right whale, whale, dolphin, seal);
    (E) Initial distance and bearing to marine mammal from vessel and 
closest point of approach; and
    (F) Any avoidance measures taken in response to the marine mammal 
sighting.
    (iii) If a North Atlantic right whale is detected via PAM, the 
date, time, location (i.e., latitude and longitude of recorder) of the 
detection as well as the recording platform that had the detection must 
be reported to [email protected] as soon as feasible, but no 
longer than 24 hours after the detection. Full detection data and 
metadata must be submitted monthly on the 15th of every month for the 
previous month via the webform on the NMFS North Atlantic right whale 
Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates).
    (iv) In the event that the personnel involved in the activities 
defined in Sec.  217.260(c) discover an injured or dead marine mammal, 
Ocean Wind must immediately report the observation to the NMFS Office 
of Protected Resources (OPR), the NMFS Greater Atlantic Stranding 
Coordinator for the New England/Mid-Atlantic area (866-755-6622), the 
NMFS RWSAS hotline, and the U.S. Coast Guard within 24 hours. If the 
injury or death was caused by a project activity, Ocean Wind must 
immediately cease all activities until NMFS OPR is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
LOA. NMFS may impose additional measures to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Ocean Wind may not 
resume their activities until notified by NMFS. The report must include 
the following information:
    (A) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (B) Species identification (if known) or description of the 
animal(s) involved;
    (C) Condition of the animal(s) (including carcass condition if the 
animal is dead);
    (D) Observed behaviors of the animal(s), if alive;
    (E) If available, photographs or video footage of the animal(s); 
and
    (F) General circumstances under which the animal was discovered.
    (v) In the event of a vessel strike of a marine mammal by any 
vessel associated with the Ocean Wind 1 Offshore Energy Facility, Ocean 
Wind must immediately report the strike incident to the NMFS Office of 
Protected Resources and the GARFO within and no later than 24 hours. 
The incident must also be immediately reported to NMFS OPR (301-427-
8401). Ocean Wind must immediately cease all activities until NMFS OPR 
is able to review the circumstances of the incident and determine what, 
if any, additional measures are appropriate to ensure compliance with 
the terms of the LOA. If activities related to the Ocean Wind 1 project 
caused the injury or death of the animal, Ocean Wind must supply a 
vessel to assist with any salvage efforts, if requested by NMFS. The 
report must include the following information:
    (A) Time, date, and location (latitude/longitude) of the incident;
    (B) Species identification (if known) or description of the 
animal(s) involved;
    (C) Vessel's speed leading up to and during the incident;
    (D) Vessel's course/heading and what operations were being 
conducted (if applicable);
    (E) Status of all sound sources in use;
    (F) Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    (G) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    (H) Estimated size and length of animal that was struck;
    (I) Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    (J) If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    (K) Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and,
    (L) To the extent practicable, photographs or video footage of the 
animal(s).


Sec.  217.266  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
Ocean Wind must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of this subpart.
    (c) If an LOA expires prior to the expiration date of this subpart, 
Ocean Wind may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, Ocean Wind must 
apply for and obtain a modification of the LOA as described in Sec.  
217.267.
    (e) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under this subpart.
    (g) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.

[[Page 65009]]

Sec.  217.267  Modifications of Letter of Authorization.

    (a) An LOA issued under Sec. Sec.  217.262 and 217.266 for the 
activities identified in Sec.  217.260(c) shall be modified upon 
request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for this subpart (excluding changes made 
pursuant to the adaptive management provision in paragraph (c)(1) of 
this section); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under this subpart were 
implemented.
    (b) For a LOA modification request by the applicant that includes 
changes to the activity or the mitigation, monitoring, or reporting 
(excluding changes made pursuant to the adaptive management provision 
in paragraph (c)(1) of this section) that do not change the findings 
made for this subpart or result in no more than a minor change in the 
total estimated number of takes (or distribution by species or years), 
NMFS may publish a notice of proposed LOA in the Federal Register, 
including the associated analysis of the change, and solicit public 
comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  217.262 and 217.266 for the 
activities identified in Sec.  217.260(c) may be modified by NMFS under 
the following circumstances:
    (1) Adaptive management. NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with Ocean Wind regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in this subpart.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from Ocean Wind's monitoring from the previous year(s).
    (B) Results from other marine mammals and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by this subpart or 
subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies. If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in the LOA issued pursuant to Sec. Sec.  
217.262 and 217.266, an LOA may be modified without prior notice or 
opportunity for public comment. Notice would be published in the 
Federal Register within 30 days of the action.


Sec. Sec.  217.268-217.269  [Reserved]

[FR Doc. 2022-23200 Filed 10-25-22; 8:45 am]
BILLING CODE 3510-22-P