Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Ocean Wind 1 Project Offshore of New Jersey, 62898-62991 [2023-19351]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 176 (Wednesday, September 13, 2023)]
[Rules and Regulations]
[Pages 62898-62991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19351]



[[Page 62897]]

Vol. 88

Wednesday,

No. 176

September 13, 2023

Part II





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 Project Offshore of New 
Jersey; Final Rule

Federal Register / Vol. 88 , No. 176 / Wednesday, September 13, 2023 
/ Rules and Regulations

[[Page 62898]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 230901-0209]
RIN 0648-BL36


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

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

ACTION: Final rule.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS promulgates regulations to govern the incidental taking of 
marine mammals incidental to Ocean Wind, LLC (Ocean Wind), a subsidiary 
wholly owned by Orsted Wind Power North America, LLC (Orsted), 
construction of the Ocean Wind 1 Offshore Wind Energy Project 
(hereafter known as the ``Project'') in Federal and State waters off of 
New Jersey, specifically within the Bureau of Ocean Energy Management 
(BOEM) Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0498 
(Lease Area) and along two export cable routes to sea-to-shore 
transition points (collectively referred to as the ``Project Area''), 
over the course of 5 years (October 13, 2023 through October 12, 2028). 
These regulations, which allow for the issuance of a Letter of 
Authorization (LOA) for the incidental take of marine mammals during 
construction-related activities within the Project Area during the 
effective dates of the regulations, prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on marine mammal species or stocks and their habitat, as well as 
requirements pertaining to the monitoring and reporting of such taking.

DATES: This rulemaking and issued LOA are effective from October 13, 
2023 through October 12, 2028.

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, supporting documents, received public comments, and the 
proposed rulemaking, as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these 
documents, please call the contact listed above (see FOR FURTHER 
INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    This final rule, as promulgated, provides a framework under the 
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize 
the take of marine mammals incidental to construction of the Project 
within the Project Area. NMFS received a request from Ocean Wind to 
incidentally take individuals of 17 species of marine mammals, 
comprising 18 stocks (10 stocks by Level A harassment and Level B 
harassment and 8 stocks by Level B harassment only), incidental to 
Ocean Wind's 5 years of construction activities. No mortality or 
serious injury was requested nor is it anticipated or authorized in 
this final rulemaking.

Legal Authority for the Final Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated (when applicable), and public notice and an opportunity for 
public comment are provided.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). If such findings are made, NMFS must prescribe the 
permissible methods of taking; ``other means of effecting the least 
practicable adverse impact'' on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
the species or stocks for taking for certain subsistence uses (referred 
to as ``mitigation''); and requirements pertaining to the monitoring 
and reporting of such takings.
    As noted above, no serious injury or mortality is anticipated or 
authorized in this final rule. Relevant definitions of MMPA statutory 
and regulatory terms are included below:
     U.S. Citizens--individual U.S. citizens or any corporation 
or similar entity if it is organized under the laws of the United 
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 
216.103);
     Take--to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13); 
50 CFR 216.3);
     Incidental harassment, incidental taking, and incidental, 
but not intentional, taking--an accidental taking. This does not mean 
that the taking is unexpected, but rather it includes those takings 
that are infrequent, unavoidable or accidental (see 50 CFR 216.103);
     Serious Injury--any injury that will likely result in 
mortality (50 CFR 216.3);
     Level A harassment--any act of pursuit, torment, or 
annoyance which has the potential to injure a marine mammal or marine 
mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and
     Level B harassment--any act of pursuit, torment, or 
annoyance which has the potential to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3).
    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 regulations and an associated LOA(s). This 
final rule establishes permissible methods of taking and mitigation, 
monitoring, and reporting requirements for Ocean Wind's construction 
activities.

Summary of Major Provisions Within the Final Rule

    The major provisions of this final rule are:
     The authorized take of marine mammals by Level A 
harassment and/or Level B harassment;
     No authorized take of marine mammals by mortality or 
serious injury;
     The establishment of a seasonal moratorium on impact pile 
driving of foundation piles during the months of the highest presence 
of North Atlantic right whales (Eubalaena glacialis) in the Lease Area 
(December 1-April 30,

[[Page 62899]]

annually), unless prior approval from NMFS for pile driving in 
December;
     The establishment of a seasonal moratorium on unexploded 
ordnance or munitions and explosives of concern (UXOs/MECs) detonations 
from November 1-April 30, annually;
     A requirement for UXO/MEC detonations to only occur during 
hours of daylight and not during hours of darkness;
     A requirement for both visual and passive acoustic 
monitoring to occur by trained, NOAA Fisheries-approved Protected 
Species Observers (PSOs) and Passive Acoustic Monitoring (PAM; where 
required) operators before, during, and after select activities;
     A requirement for training for all Ocean Wind personnel to 
ensure marine mammal protocols and procedures are understood;
     The establishment of clearance and shutdown zones for all 
in-water construction activities to prevent or reduce the risk of Level 
A harassment and to minimize the risk of Level B harassment;
     A requirement to use sound attenuation device(s) during 
all foundation impact pile driving installation activities and UXO/MEC 
detonations to reduce noise levels to those modeled assuming 10 
decibels (dB);
     A delay to the start of foundation installation and UXO/
MEC detonations if a North Atlantic right whale is observed at any 
distance by PSOs or acoustically detected within certain distances;
     A delay to the start of foundation installation and UXO/
MEC detonations if other marine mammals are observed entering or within 
their respective clearance zones;
     A requirement to shut down impact pile driving (if 
feasible) if a North Atlantic right whale is observed or if any other 
marine mammals are observed entering their respective shut down zones;
     A requirement to implement sound field verification during 
impact pile driving of foundation piles and during UXO/MEC detonations 
to measure in-situ noise levels for comparison against the modeled 
results;
     A requirement to implement soft-starts during impact pile 
driving using the least amount of hammer energy necessary for 
installation;
     A requirement to implement ramp-up during the use of high-
resolution geophysical (HRG) marine site characterization survey 
equipment;
     A requirement for PSOs to continue to monitor for 30 
minutes after any impact pile driving for foundation installation and 
after any UXO/MEC detonations;
     A requirement for the increased awareness of North 
Atlantic right whale presence through monitoring of the appropriate 
networks and Channel 16, as well as reporting any sightings to the 
sighting network;
     A requirement to implement various vessel strike avoidance 
measures;
     A requirement to implement measures during fisheries 
monitoring surveys, such as removing gear from the water if marine 
mammals are considered at-risk or are interacting with gear; and
     A requirement for frequently scheduled and situational 
reporting including, but not limited to, information regarding 
activities occurring, marine mammal observations and acoustic 
detections, and sound field verification monitoring results.
    NMFS must withdraw or suspend an LOA issued under these 
regulations, after notice and opportunity for public comment, if it 
finds the methods of taking or the mitigation, monitoring, or reporting 
measures are not being substantially complied with (16 U.S.C. 
1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with 
the requirements of the LOA may result in civil monetary penalties and 
knowing violations may result in criminal penalties (16 U.S.C. 1375).

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

Summary of Request

    On October 21, 2021, Ocean Wind submitted a request for the 
promulgation of regulations and issuance of an associated LOA to take 
marine mammals incidental to construction activities associated with 
the Project in the Project Area. The request was for the incidental, 
but not intentional, taking of a small number of 17 marine mammal 
species (comprising 18 stocks) by Level B harassment (all 18 stocks) 
and by Level A harassment (10 species or stocks). Ocean Wind did not 
request and NMFS neither expects nor authorizes incidental take by 
serious injury or mortality.
    In response to our questions and comments and following extensive 
information exchange between Ocean Wind and NMFS, Ocean Wind submitted 
a final revised application on February 8, 2022. NMFS deemed it 
adequate and complete on February 11, 2022. This final application is 
available on NMFS' website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    On March 7, 2022, NMFS published a notice of receipt (NOR) of Ocean 
Wind's adequate and complete application in the Federal Register (87 FR 
12666), requesting public comments and information on Ocean Wind's 
request during a 30-day public comment period. During the NOR public 
comment period, NMFS received comment letters from two environmental 
non-governmental organizations (ENGOs): Clean Ocean Action (COA) and 
the Natural Resource Defense Council (NRDC) on behalf of several other 
ENGOs.
    On October 26, 2022, NMFS published a proposed rule in the Federal 
Register for the Ocean Wind 1 Project (87 FR 64868). In the proposed 
rule, NMFS synthesized all of the information provided by Ocean Wind, 
all best available scientific information and literature relevant to 
the proposed project, outlined, in detail, proposed mitigation designed 
to effect the least practicable adverse impacts on marine mammal 
species and stocks as well as proposed monitoring and reporting 
measures, and made preliminary negligible impact and small numbers 
determinations. The public comment period on the proposed rule was open 
for 45 days on Regulations.gov starting on October 26, 2022 and closed 
after December 10, 2022. Specific details on the public comments 
received during this 45-day period are described in the Comments and 
Responses section.
    NMFS has previously issued three Incidental Harassment 
Authorizations (IHAs) to Ocean Wind for related work regarding high 
resolution site characterization surveys (82 FR 31562, July 7, 2017; 86 
FR 26465, May 14, 2021; 87 FR 29289, May 13, 2022). To

[[Page 62900]]

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 (87 FR 46921, 
August 1, 2022) to further reduce the likelihood of mortalities and 
serious injuries to endangered right whales from vessel collisions, 
which are a leading cause of the species' decline and a primary factor 
in an ongoing Unusual Mortality Event (UME). Should a final vessel 
speed rule be issued and become effective during the effective period 
of these regulations (or any other MMPA incidental take authorization), 
the authorization holder will be required to comply with any and all 
applicable requirements contained within the final rule. Specifically, 
where measures in any final vessel speed rule are more protective or 
restrictive than those in this or any other MMPA authorization, 
authorization holders will be required to comply with the requirements 
of the vessel speed rule. Alternatively, where measures in this or any 
other MMPA authorization are more restrictive or protective than those 
in any final vessel speed rule, the measures in the MMPA authorization 
will remain in place. The responsibility to comply with the applicable 
requirements of any vessel speed rule will become effective immediately 
upon the effective date of any final vessel speed rule, and when notice 
is published on the effective date, NMFS will also notify 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 required.

Description of the Specified Activities

Overview

    Ocean Wind plans to construct and operate the Project, a 1,100-
megawatt (MW) offshore wind farm, in the Project Area. The Project will 
allow the State of New Jersey to meet its renewable energy goals under 
the New Jersey Offshore Wind Economic Development Act. The Project will 
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, offshore export cables, and 
substation interconnector cables. Overall, Ocean Wind will conduct the 
following specified activities: install 98 WTGs and 3 OSS on monopile 
foundations via impact pile driving; install and subsequently remove 
cofferdams and goal posts to assist in the installation of the export 
cable route by vibratory pile driving; several types of fishery and 
ecological monitoring surveys; 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 kilohertz (kHz); the detonation of up to 
ten UXOs/MECs of different charge weights, as necessary; transit within 
the Project Area and between ports and the Lease Area to transport 
crew, supplies, and materials to support pile installation via vessels; 
and WTG operation. All offshore cables will connect to onshore export 
cables, substations, and grid connections, which will be located in 
Ocean County, New Jersey and Cape May County, New Jersey. Marine 
mammals exposed to elevated noise levels during impact and vibratory 
pile driving, detonations of UXOs/MECs, and/or site characterization 
surveys may be taken by Level A harassment and/or Level B harassment, 
depending on the specified activity.
    A detailed description of the Project is provided in the proposed 
rule as published in the Federal Register (87 FR 64868, October 26, 
2022). Since the proposed rule was published, Ocean Wind has modified 
the project start and end dates, changing them from August 2023 to July 
2028 to a new effective period of October 13, 2023 to October 12, 2028. 
Ocean Wind has also modified its vibratory pile driving activity from 
vibratory pile driving of seven temporary cofferdams to vibratory pile 
driving of four temporary cofferdams (Barnegat Bay landfall locations) 
and three temporary goal posts (two at Island Beach State Park, one at 
BL England). This modification neither changes the nature of the 
specified activity (i.e., vibratory pile driving), not the potential 
impacts to marine mammals associated with the specified activity. As 
described in the Estimated Take section below, this modification 
reduces the number of takes anticipated from vibratory pile driving. 
Ocean Wind has not modified any other activity from what was previously 
described in the proposed rule. We hereby incorporate the updated 
Project description, as provided by Ocean Wind, by reference; 
therefore, a more detailed description is not provided here. Please 
refer to the proposed rule and Ocean Wind's supporting information 
(e.g., application, memos) for more information on the description of 
the specified activities.

Dates and Duration

    Ocean Wind anticipates its specified activities to occur throughout 
all 5 years of the final rule, beginning on October 13, 2023 and 
continuing through October 12, 2028. Ocean Wind anticipates the 
following construction schedule over the 5-year period (Table 1). Ocean 
Wind has noted that these are the best and conservative estimates for 
activity durations but that the schedule may shift due to weather, 
mechanical, or other related delays. Additional information on dates 
and activity-specific durations can be found in the proposed rule and 
are not repeated here.

                     Table 1--Construction Schedule
------------------------------------------------------------------------
                  Activity                      Estimated schedule \a\
------------------------------------------------------------------------
HRG Surveys................................  Q3 2023-Q2 2028.
UXO/MEC Detonation.........................  Q4 2023-Q3 2028.
Landfall Cable Installation................  Q4 2023-Q4 2024.
Offshore Export Cable Installation.........  Q2 2024-Q1 2025.
Offshore Foundation Installation (WTG and    Q2 2024-Q4 2024.
 OSS).
Inter-array Cable Installation.............  Q3 2024-Q2 2025.
WTG and OSS Installation and Commissioning.  Q3 2024-Q1 2026.

[[Page 62901]]

 
Fishery Monitoring Surveys.................  Q2 2022-Q4 2027.
------------------------------------------------------------------------
Note: ``Q1, Q2, Q3, and Q4'' each refer to a quarter of the year,
  starting in January and comprising 3 months each. Therefore, Q1
  represents January through March, Q2 represents April through June, Q3
  represents July through September, and Q4 represents October through
  December.
\a\ We acknowledge that the schedule may need to shift, given
  unforeseeable circumstances (e.g., inclement weather, mechanical
  difficulties) but the dates and durations presented here represent the
  most realistic schedule.

Specific Geographic Region

    A detailed description of the Specific Geographic Region is 
provided in the proposed rule as published in the Federal Register (87 
FR 64868, October 26, 2022). Since the proposed rule was published, no 
changes have been made to the Specified Geographic Region. Generally, 
Ocean Wind's specified activities (i.e., impact pile driving of WTGs 
and OSS monopile foundations; vibratory pile driving (installation and 
removal) of temporary cofferdams and goal posts; placement of scour 
protection; trenching, laying, and burial activities associated with 
the installation of the export cable route and inter-array cables; HRG 
site characterization surveys; UXOs/MECs detonation; and WTG operation) 
are concentrated in the Project Area. A couple of Ocean Wind's 
specified activities (i.e., fishery and ecological monitoring surveys 
and transport vessels) will occur in the Mid-Atlantic Bight.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TR13SE23.000

BILLING CODE 3510-22-C

Comments and Responses

    A notice of proposed rulemaking was published in the Federal 
Register on October 26, 2022 (87 FR 64868) and a 15-day extension to 
the public comment period was published on November 25, 2022 (87 FR 
72447). The proposed

[[Page 62903]]

rulemaking described, in detail, Ocean Wind's specified activities, the 
specific geographic region of the specified activities, the marine 
mammal species that may be affected by those activities, and the 
anticipated effects on marine mammals. In the proposed rule, we 
requested that interested persons submit relevant information, 
suggestions, and comments on Ocean Wind's request for the promulgation 
of regulations and issuance of an associated LOA described therein, our 
estimated take analyses, the preliminary determinations, and the 
proposed regulations. In total, the proposed rule was available for a 
45-day public comment period.
    In total, NMFS received 20 comment submissions, including 14 
comments from private individuals. Some of these comments were out-of-
scope or not applicable to this specific action (e.g., general support/
opposition to the Project itself; concerns for other species outside of 
NMFS' jurisdiction (i.e., birds); maintenance of the permanent 
structures; Internal Revenue Service tax filing information), and are 
not described herein or discussed further. Four comment letters were 
from ENGOs, including one from COA, one from Oceana, Inc. (Oceana), and 
two from the NRDC, of which one was a comment letter with an attachment 
and the other was a request to extend the comment period an additional 
15 days (hence, the extension published in the Federal Register on 
November 25, 2022 (87 FR 72447)). We also received one comment letter 
from a governmental organization, the Marine Mammal Commission 
(Commission), and one comment letter from a public organization, the 
Conservation Law Foundation (CLF). These five letters (excluding the 
NRDC request for a 15-day comment period extension on the proposed 
regulations) contained substantive information that NMFS considered in 
its estimated take analysis, final determinations, and final 
regulations. These comments are described below, along with NMFS' 
responses. All substantive comments and letters are available on NMFS' 
website: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please review the 
corresponding public comment link for full details regarding the 
comments and letters.

Modeling and Take Estimates

    Comment 1: The Commission recommended that, until JASCO Applied 
Sciences' (hereafter, ``JASCO'') model has been validated with in-situ 
measurements from the impact installation of monopiles and pin piles in 
the northwest Atlantic, NMFS should require Ocean Wind and thus JASCO 
to re-estimate the various Level A harassment and Level B harassment 
zones for the final rule using source levels that are at a minimum 3 dB 
greater than those currently used.
    Response: The Commission has expressed concerns about the lack of 
validation of JASCO's models in previous Commission letters for 
Orsted's other wind projects. JASCO has compared their source model 
predictions to an empirical model prediction by the Institute of 
Technical and Applied Physics (ITAP). The empirical model is based on a 
large data set of pile driving sounds measured at 750 m from the source 
collected during installation of large-diameter piles (up to 8 m) 
during wind farm installation in the North Sea (Bellmann, 2020). As no 
noise measurements exist for tapered 8/11-m monopile at this time (yet 
to be installed offshore), the ITAP prediction facilitates a way of 
validating the source levels of the numerical finite difference (FD) 
model. The ITAP data are averaged across different scenarios; pile 
sizes are grouped, which includes different hammers, water depths, 
depths of penetration, and environmental conditions; and the 95th 
percentile level is reported, whereas the aim of JASCO's modeling is to 
estimate the median value. While the ITAP forecast and the FD source 
predictions were comparable (see Appendix I of the Ocean Wind 1 
Underwater Acoustic and Exposure Modeling report (K[uuml]sel et al., 
2022)), there is variance in the underlying ITAP data and there are 
parametric choices for the FD model in the different environments, so 
an exact match is not expected. As part of the comparison, it was found 
that different (but reasonable) parametric input choices in the FD 
modeling can result in output differences on the order of the variance 
in the ITAP data so it was concluded that the FD modeling approach 
performed as well as can be discernible given the available data. While 
adding 3 dB to the JASCO predictions at 750 m may bring JASCO's source 
predictions into line with the finite-element (FE) predictions for the 
portmanteau combining computation, comparison, and pile (COMPILE) 
scenario but it is not clear that this would be more accurate. This 
approach assumes that the FE models are correct but Lippert et al. 
(2016) also state ``a drawback of (the FE) approach is that it 
simulates the energy loss due to friction in an indirect and rather 
nonphysical way.'' The Commission also suggested that NMFS could have 
used damped cylindrical spreading model (DCSM; Lippert et al., 2018) 
and the source levels provided by TDFD PDSM; however, for reasons 
described herein, NMFS has determined JASCO's model results are 
reliable and achievable.
    Recent measurements taken during the Coastal Virginia Offshore Wind 
(CVOW) Pilot Project reported the range to the marine mammal Level B 
threshold (160 dB re 1[mu]Pa) from the 7.8-m pile installed with a 
double big bubble curtain to be 3,891 m (12,765.75 ft) when using a 
hammer operating at a maximum of 550 kJ (WaterProof, 2020). JASCO's 
model prediction for 11-m piles using a 4,000 kJ hammer is 4,684 m 
(15,367.45 ft). The Commission states that, based on the CVOW reported 
sound levels, JASCO's modeled predicted range should be more than 
double instead of only an approximate 20 percent increase because Ocean 
Wind's hammer has up to approximately five times more energy (550 kJ vs 
4,000 kJ). NMFS disagrees. The 3,891-m distance to the Level B 
harassment threshold measured during the CVOW Pilot Project cited by 
the Commission was obtained based on the maximum measured sound 
pressure level (RMS SPL), which is not an ideal statistic to base 
estimates of Level B harassment isopleths, as it is not representative 
of average operating conditions and represents one hammer strike. 
Further, small differences in the propagation environment could account 
for the ranges being more comparable than expected. Importantly, as 
described below, NMFS is also now in receipt of measurements from the 
South Fork project which indicate JASCO's predicted distance to the 
Level B harassment threshold is realistic and attainable. Based on the 
expected variance between the Ocean Wind 1 and CVOW projects and 
measurement data from South Fork (see below), it cannot be concluded 
that the CVOW measured results (using the maximum RMS SPL reported) 
indicate that JASCO's 4,684 m modeled distance to Level B harassment 
threshold should be increased.
    Importantly, since the proposed rule phase, NMFS has received 
interim sound field verification reports from the South Fork Wind 
project, which used JASCO's modeling. In all but one case, and out of 
six 7-8/9.5-m tapered piles installed, the measured distances to NMFS' 
Level B harassment threshold were lower than JASCO's model predicted. 
The distance to NMFS Level B harassment threshold was modeled as 4,684 
m while in-situ measurements identified distances, excluding the one 
aforementioned pile, ranging from 1.84 kilometers (km) to 3.25 km. 
JASCO's modeling predicts the distances to the

[[Page 62904]]

Level B harassment threshold installation of Ocean Wind 1 monopiles 
will be approximately 3.3 km in summer, which aligns with the South 
Fork Wind results. South Fork Wind determined that the one pile 
generating noise levels above those predicted (the first pile) did so 
due to a malfunctioning noise attenuation system which was quickly 
rectified and deployed appropriately on all future piles. Further, in 
this final rule, we are requiring Ocean Wind's measured sound levels do 
not exceed those modeled, assuming 10 dB, for at least three 
consecutively measured monopiles. Based on all these reasons, NMFS is 
not requiring Ocean Wind to remodel the harassment zone sizes by adding 
3 dB to the source levels and is, instead, carrying forward the 
modeling results as presented in the proposed rule.
    Of note, NMFS has also received interim sound field reports from 
Vineyard Wind. However, some of the assumptions used in the modeling 
(e.g., maximum hammer energy) do not align with the construction 
parameters Vineyard Wind is currently using in the field, so 
comparisons between the modeled and measured results are not as 
directly applicable and, therefore, are less useful in judging 
predicted alignment between modeled and measured zones.
    Based on this discussion and given our consideration of the 
available SFV reports from other projects, we disagree with the 
suggestions made by the Commission. NMFS has incorporated the best 
available scientific information into this final rule, using recent 
measurements as well as estimates obtained through JASCO's modeling.
    Comment 2: The Commission suggested that JASCO should consider 
revising its exposure modeling to include single-day simulations for 
stationary, discrete sound sources and numerous Monte Carlo simulations 
(e.g., at least 30) for modeling reports for future rules.
    Response: JASCO typically uses 7-day simulations to get a 
representative sample of the installation process (e.g., impact piling 
every day or every other day). From those 7-day simulations, several 
24-hour windows within the 7-day simulations are used to find the 
average exposure expected in a 24-hour period that includes impact pile 
driving. The average 24-hour estimates are then scaled by the number of 
days of impact pile driving. The use of the 7-day simulation allows for 
a robust probability calculation. The Commission recommends that, 
instead, JASCO run 30 single-day simulations to generate an average 
daily exposure. While NMFS makes recommendations, as appropriate, 
regarding the inputs, assumptions, and methods used by applicants to 
model and estimate marine mammal take, there is no single correct 
overall methodology. The Commission does not provide any information to 
support an assertion that the method used by JASCO is not appropriate 
or sufficient, and NMFS supports the use of this methodology.
    Furthermore, it is unclear what the Commission means by 
``stationary, discrete sound sources.'' If the sources referred to are 
the monopiles or pin piles, then JASCO's modeling approach does use a 
Monte Carlo approach for sampling the expected sound fields. With the 
typical modeling density of 0.5 simulated animals (animats)/km\2\, 
there are usually tens of thousands of animats meaning there are tens 
of thousands of Monte Carlo samples. If the suggestion is to run the 
simulations (with tens of thousands of animats) 30 times, that is 
equivalent to increasing the modeling density by 30. Previous work, 
such as the work done by Houser (2006), has indicated that such high 
modeling densities are not necessary. Please refer to NMFS' related 
response to Comment 5.
    Comment 3: Citing the dire situation of North Atlantic right 
whales, a commenter stated that NMFS should clearly describe in the 
regulations or LOA for wind projects that the activities cannot result 
in any Level A harassment, serious injury, or mortality of North 
Atlantic right whales.
    Response: The proposed rule clearly states that no take of North 
Atlantic right whale by Level A harassment, mortality, or serious 
injury was requested or proposed for authorization (see the Estimated 
Take and Negligible Impact Analysis and Determination sections in the 
proposed rule), and those statements are also included in this final 
rule. In this final rule, for example, Tables 33 and 34 shows that only 
Level B harassment is authorized for North Atlantic right whales, and 
the North Atlantic right whale sub-section in the Negligible Impact 
Analysis and Determination section also states that no take of North 
Atlantic right whale by Level A harassment, mortality, or serious 
injury is anticipated or authorized and any take that is authorized is 
limited to Level B harassment only.
    Comment 4: The Commission recommended that NMFS authorize Level A 
harassment takes for group size for minke whales and both bottlenose 
dolphin stocks from UXO/MEC detonations in the final rule.
    Response: We agree that there is some small potential for these 
smaller species to be exposed to noise levels that may cause PTS. 
Therefore, in this final rule, NMFS has conservatively authorized 
additional takes by Level A harassment of both bottlenose dolphins 
stocks and minke whales from UXO/MEC detonation. Using Ocean Wind's 
group size information. NMFS has increased the amount of take by Level 
A harassment from UXO/MEC detonations from 0 in the proposed rule to 11 
for each stock of bottlenose dolphins, and from 0 in the proposed rule 
to 2 for minke whales.
    Comment 5: The Commission recommends that NMFS: (1) require Ocean 
Wind to revise its take estimates for impact installation of monopiles 
and pin piles based on an animat density that is greater than any 
species specific, real-world density and the possibility that only a 
single monopile is installed per day rather than two per day, and (2) 
increase the takes by Level A harassment of humpback whales to mean 
group size for OSS impact installation.
    Response: The Commission cites two of the assumptions in the take 
estimate methodology that could push the take estimate in the direction 
of less than the maximum expected takes. However, there are multiple 
other assumptions in the take estimate methodology that consider 
conditions that would result in the maximum possible takes, or even an 
overestimate of possible takes. When all of these assumptions are 
considered together, NMFS expects the take estimate model and 
methodology to produce the maximum take that is expected to occur 
incidental to the specified activities.
    While Ocean Wind has acknowledged that it may not install two piles 
every day, it has indicated it is capable of installing up to two piles 
per day with the goal to complete installation as quickly as possible. 
Hence, to assume only one monopile per day every day would not be 
consistent with what Ocean Wind, a company with offshore wind farm 
installation experience, has indicated is possible or is planned. The 
exposure estimates contained within the proposed rule are a product of 
modeling that assumes two piles are driven per day. There are several 
conservative assumptions that offset the potential to underestimate 
take should Ocean Wind not be able to install two piles per day every 
day, including, but not limited to, all piles are installed during 30 
days of the highest density month and 19 days (38 piles) of the second-
highest density month for each species from May to December. This is 
conservative because

[[Page 62905]]

pile driving every day within a given month is not possible due to 
historical weather patterns and potential technical issues that may be 
encountered and the highest density of every species does not occur in 
the same month. It is more likely that pile driving will occur over 
several months which have lower marine mammals species density. 
Additionally, for some species, group size or PSO data adjustments were 
made that increased the number of takes authorized compared to the 
modeled exposure estimates. Furthermore, the exposure estimates modeled 
and number of takes authorized do not consider natural avoidance of 
marine mammals to noise levels that could elicit PTS or the use of 
mitigation such as shutdown or clearance zones, which are designed to 
effect the least practicable adverse impact on marine mammals, 
including North Atlantic right whales (e.g., pile driving may not 
commence and must shut down if a North Atlantic right whale is observed 
at any distance). Finally, while Ocean Wind may use monopiles for OSS 
foundations, NMFS has used the pin pile take estimates in the total 
take authorized. The exposure estimates for pin piles is greater for 
all species than the exposures estimated for monopiles installation.
    Regarding density seeding, the Commission asserts that when a 
model's density seeding is lower than the real-world density and, as 
here, 7-day simulations are used (as opposed to using 1-day simulations 
that are run 30-50 times, as is the case in other models), there is a 
chance that the model could miss consideration of a rarer event, 
resulting in a lower than maximum take estimate. As noted by the 
Commission, for common bottlenose dolphins, the real-world density 
(0.51) is higher than the density seeded (0.50) in the model. The use 
of the 0.5 animats/km\2\ for all species is to robustly sample (with 
tens of thousands of animats) the expected sound fields, providing 
statistically reliable results. Typically the real-world density is 
much lower than this modeled density and the number of real-world 
individual animals is found by scaling the number of animats exceeding 
a threshold by the ratio: real-world density/modeled density. That, 
rarely, the real-world density may exceed the modeled density, in this 
case 0.51 versus 0.50 animats/km\2\, does not change the process or the 
statistical reliability of the results. While the Commission's 
assertion that, if this were the only factor considered, the fact that 
the actual density is higher than the seeded density could result in a 
lesser likelihood that the model would capture circumstances 
representing a rare event that might result in higher take may be 
true--in this case, the degree of difference is a real-world density of 
0.51 versus a seeded density of 0.50. Additionally, as described above, 
there are numerous other conservative assumptions in the model such 
that, when considered together, support NMFS assessment that the number 
of takes authorized represents the maximum number of takes expected to 
occur incidental to the specified activities.
    For these reasons, NMFS disagrees with the Commission's assessment 
that the take is underestimated and believes that the Commission's 
suggestion to double the number of takes authorized as a simplistic 
solution to their perceived issue would unnecessarily overestimate 
take. Please see NMFS related response to Comment 2.
    NMFS agrees with the Commission's recommendation to increase the 
amount of Level A harassment of humpback whales to a group size during 
OSS foundation installation given the more frequent sightings of the 
species recently off of New Jersey. Based on the 2021-2022 monitoring 
report the Commission referenced, we have increased the amount of take 
by Level B harassment of humpback whales to 46 for OSS foundation 
installation. However, we emphasize that the majority of humpback whale 
sightings described by the Commission occurred in winter and this 
rulemaking includes a prohibition on foundation installation January 1 
through April 30 (as impact pile driving may only occur in December 
with prior NMFS approval). All other foundation installation take 
estimates follow the approach as described in the proposed rule.
    Comment 6: The Commission recommended that NMFS increase the Level 
B harassment takes for common dolphins and Atlantic white-sided 
dolphins incidental to cable landfall construction to a mean group 
size.
    Response: Despite the nearshore location of cable landfall 
construction, vibratory installation and removal versus the more 
offshore distribution of these species, as well the short duration of 
vibratory pile driving, which suggests take of these species is very 
low, NMFS has accepted the Commission's recommendation as a 
conservative approach. The final rule includes 30 takes by Level B 
harassment of common dolphins and 12 takes by Level B harassment of 
Atlantic white-sided dolphins from cable landfall activities, based on 
group size information from AMAPPS.
    Comment 7: The Commission recommended that NMFS determine if the 
Department of the Navy's (2017) group size estimates are more 
appropriate or reflective of the expected group size estimates for the 
Project than those used in the proposed rule. If so, the Commission 
suggests the take numbers be amended in the final rule for all Ocean 
Wind's activities.
    Response: We appreciate the suggestion by the Commission to review 
the Department of the Navy's (2017) group size estimates to see if they 
are more applicable for the Project. Based on our review, we disagree 
that the Navy's group size estimates are the most applicable in this 
case. First, the Navy only provides group size estimates for 
odontocetes, which means we would still need to find applicable 
estimates for non-odontocete species found in the Atlantic Ocean. 
Second, the group sizes provided by Ocean Wind used information by Toth 
et al. (2011) for coastal bottlenose dolphins; Kenny and Vigness-Raposa 
(2010) for sei whales, minke whales, Atlantic spotted dolphins, and 
pilot whale spp.; CeTAP (1982) for humpback whales; and Barkaszi and 
Kelly (2019) for sperm whales and Risso's dolphin, which are derived 
from data gathered specifically in the mid- and north-Atlantic, where 
the Project will occur, whereas the group sizes in the Department of 
the Navy's (2017) report are based on data collected more broadly 
across the entire East Coast of the United States and Canada, including 
the Gulf of Mexico, Sargasso Sea, Labrador Sea, and Labrador Basin. Any 
additional takes that NMFS has opted to authorize, per recommendations 
by the Commission, is based on either the group size literature already 
provided by Ocean Wind (e.g., from Toth et al., 2011 for corrections to 
bottlenose dolphins) or based on group size information from AMAPPS, 
which derived data for its annual reports from specific transects 
undertaken in specific regions (New Jersey through Maine, per Figure 1-
1 in the 2021 Annual Report, https://repository.library.noaa.gov/view/noaa/41734). Furthermore, AMAPPS uses more recent information, as 
demonstrated in the 2010-2021 annual reports found on NMFS' web page 
(https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected). The 
Department of the Navy's (2017) group sizes are based on data from 1990 
through 2013 (see Table 3-1 in the report). Lastly, based on monitoring 
reports received from PSOs in the field (and found on NMFS' website: 
https://

[[Page 62906]]

www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-
take-authorizations-other-energy-activities-renewable#expired-
authorizations), the group sizes observed align more with estimates 
found in Kraus et al. (2016) and AMAPPS (Palka et al., 2017). For these 
reasons, the group sizes proposed by Ocean Wind, any adjustments using 
AMAPPS data, and any group sizes used in the proposed and final rules 
are based on the best available scientific information.
    Comment 8: The Commission recommended that NMFS include in the 
final rule Level B harassment takes of the coastal stock of bottlenose 
dolphins during impact installation of monopiles and pin piles, if any 
pile will be installed in 20 m of water or less or if any Level B 
harassment zone extends into 20 m or less of water.
    Response: Based on the recommendation by the Commission, JASCO has 
seeded the coastal bottlenose dolphin stock only in shallow water 
(defined here as any area less than 20-m water depth). In consultation 
with Ocean Wind, NMFS has reallocated a conservative 10 percent of the 
offshore bottlenose dolphin Level B harassment take request to the 
coastal stock, which revises the authorized take from impact pile 
driving of permanent foundations to 842 takes by Level B harassment for 
the offshore stock and 94 takes by Level B harassment for the coastal 
stock.
    We note that no take by Level A harassment of this coastal 
bottlenose dolphin stock has been authorized as, based on Figure 1 of 
the Underwater Acoustic and Exposure Modeling Report, all project 
foundations in the Lease Area will be installed beyond the 20-m 
isobath. The largest 10-dB attenuation exposure range for the project 
is approximately 3.5 km. The distance between the shallowest foundation 
position and shallow water is about this distance or less; thus, it is 
unlikely that the coastal stock would approach the piles during impact 
pile driving for the duration necessary to experience Level A 
harassment.
    Comment 9: The Commission disagreed that non-auditory injury and 
mortality during UXO/MEC detonations are considered de minimis. It 
stated that although non-auditory injury and mortality could be 
unlikely, these outcomes are not de minimis because these assumptions 
were based off Bellmann et al. (2020) and Bellmann (2021) and their 
reports of bubble curtain effectiveness, which are based on information 
obtained from mitigating UXO/MECs in European waters using a big bubble 
curtain. The Commission further stated that these results from Bellmann 
are only potentially possible if the single or double bubble curtain 
was optimized for the environmental conditions and that these results 
are specific to European charges, which may not be representative of 
charges in the United States as charges in Europe have been degrading 
in the water for approximately 75 years, which compromises the 
integrity of the trinitrotoluene (TNT)-equivalent material. 
Additionally, the charge weights described in Bellmann (2021) are much 
smaller than those described for the Project (i.e., 100 grams (g), 5 
kilograms (kg), and 10 kg, compared to 454 kg). The Commission also 
added that the shockwave from the UXO/MEC detonations may displace or 
disrupt the bubble curtains due to the speed the shockwave travels 
(i.e., supersonic). Because of these reasons, the Commission 
recommended that NMFS re-estimate the distances to threshold and the 
mitigation and monitoring zones for mortality, Level A harassment, and 
Level B harassment based on 0-dB of sound attenuation.
    The Commission also stated that it does not make sense to say that 
behavioral harassment will not result from exposure to single 
detonations of UXO. The Commission also recommended that NMFS re-
estimate the number of takes from UXO/MEC detonation while increasing 
to the relevant group sizes, when necessary. Finally, the Commission 
recommended that because of the reasons already explained regarding 
attenuating UXO/MEC detonations, NMFS should require that Ocean Wind 
utilize a double big bubble curtain (DBBC) during all detonations and 
that NMFS not allow Ocean Wind to detonate UXOs/MECs when currents are 
moving faster than 2 knots (kn).
    Response: NMFS appreciates the Commission's recognition that 
European waters offer a different environment than the Atlantic Ocean, 
and then the conditions and size of explosives potentially encountered 
in the Ocean Wind project area. Bellmann (2021) summarized findings 
from Bellmann et al. (2021) that showed use of a single big bubble 
curtain during UXO/MEC detonation reduced noise levels by 11 dB for 
broadband sound exposure levels and up to 18 dB for peak sound pressure 
(Lpk). While NMFS agrees with the Commission's comment that 
BBCs attenuate high-frequency (HF) sound (<1 kHz) more efficiently than 
low-frequency (LF) sound (Bellmann et al., 2020) that corresponds to 
most of the UXO/MEC energy, the broadband attenuation is expected to be 
similar, if the bubble curtain radius is large enough to avoid 
nearfield effects of the explosive detonations. While it is true that 
theoretical explosive spectra are flat at low frequencies and decay at 
high-frequencies, there remains significant energy at frequencies at 
which bubble curtains have been shown to be effective (Bellmann et al., 
2020). A recent study of UXO/MEC detonations in the North Sea (Robinson 
et al., 2022) showed that measured spectra at 5.1 km had the majority 
of its energy between 32 and 250 Hz, in this range, the insertion loss 
data from Bellman (2021) has a minimum attenuation of approximately 
16.8 dB in the 50-hertz (Hz) band, and is greater than 20 dB for all 
other bands. Further, Verfuss et al. (2019) summarize the effectiveness 
of bubble curtains on UXO/MEC detonations beyond those sizes considered 
in Bellman et al. (2021) which, while variable, provide support for the 
10-dB broadband assumption when bubble curtains are deployed correctly 
(i.e., with a sufficiently large diameter, to suppress the flow of 
displaced water). Therefore, the choice of 10 dB as a broadband 
attenuation for UXO/MEC detonations in our analysis is expected to be 
appropriate.
    In addressing the Commission's additional comments regarding 
mitigating pile driving and UXO/MEC detonations and the efficacy, the 
physical principles of inserting an impedance change between the source 
and farther receivers is the same whether the source is an explosive or 
a pile. It is important, however, that the bubble curtain be placed 
outside of the region where the explosive causes nonlinear changes in 
the medium. While we do agree that ``the deployment'' and the 
``efficacy'' are not synonymous terms, there will be a deployed bubble 
curtain on each of the piles driven for the project so an understanding 
of bubble curtain deployment strategies, maintenance, and use will be 
understood by the operations team. As above, the mechanism of sound 
attenuation, while frequency dependent, does not change for the source 
as long as the bubble curtain is deployed at distance where the 
acoustics is linear. For UXOs/MECs, the distances to thresholds for 
different sized charges likely to be encountered were calculated by 
JASCO assuming the sources were full strength and not degraded due to 
time. While the Commission has also accurately stated that the bubble 
curtain could be displaced due to the supersonic shockwave produced by 
the detonation event, we acknowledge that this would require the bubble 
curtain to be placed

[[Page 62907]]

in the area outside of the non-linear zone.
    NMFS is requiring Ocean Wind to meet the noise levels modeled 
assuming 10-dB attenuation, which must be verified by SFV, and, as 
recommended by the Commission, is requiring Ocean Wind deploy a double 
big bubble curtain during all UXO/MEC detonations. Further, we are 
requiring that the bubble curtain be placed at a distance such that the 
nozzle hose remains undamaged. Given the best available science 
suggests 10-dB attenuation is achievable, the additional information 
provided above by JASCO, the requirement to meet the noise levels 
modeled assuming 10 dB, and the requirement to use a double big bubble 
curtain, as well as the extensive monitoring requirements associated 
with the clearance requirements (including aerial surveys if the 
clearance zone is greater than 5 km), NMFS has not adjusted any 
distances to thresholds or take estimates assuming no noise 
attenuation. At this time, NMFS is not requiring UXO/MEC detonation be 
limited to times when current speed is 2 kn or less but, as described 
above, is requiring Ocean Wind to meet the noise levels modeled. Should 
SFV identify that noise levels are not being met, NMFS will consider 
the current conditions during detonation and determine if such a 
measure is necessary to meet the noise levels modeled assuming 10-dB 
attenuation. Nonetheless, regarding the Commission's comment about use 
of the term ``de minimis'' to describe the likelihood of non-auditory 
injury or mortality, we concur that ``unlikely'' is a better descriptor 
and have changed it in the text where appropriate.
    Regarding the Commission's comments regarding behavioral 
disturbance resulting from single detonations from UXO/MEC, NMFS agrees 
there is potential for behavioral disturbance from a single detonation 
per day and this impact is accounted for with the Level B harassment 
takes authorized from UXO/MEC detonations. NMFS acknowledges the 
possibility that single underwater detonations can cause a behavioral 
response. The current take estimate framework allows for the 
consideration of animals exhibiting behavioral disturbance during 
single explosions as they are counted as ``taken by Level B 
harassment'' if they are exposed above the temporary threshold shift 
(TTS) threshold, which is 5-dB higher than the explosive behavioral 
harassment threshold. The behavior threshold for underwater detonations 
of 5 dB less than the TTS thresholds for each functional hearing group 
that the Commission identifies in its comment is only applicable to 
multiple detonations per day. We acknowledge in our analysis that 
individuals exposed above the TTS threshold may also be harassed by 
behavioral disruption and those potential impacts are considered in the 
negligible impact determination. NMFS is not aware of evidence to 
support the assertion that animals will have behavioral responses that 
would qualify as take to temporally and spatially isolated explosions 
at received levels below the TTS threshold. However, if any such 
responses were to occur, they would be expected to be few and to result 
from exposure to the somewhat higher received levels bounded by the TTS 
thresholds and would thereby be accounted for in the take estimates. 
The derivation of the explosive injury criteria is provided in the 2017 
technical report titled ``Criteria and Thresholds for U.S. Navy 
Acoustic and Explosive Effects Analysis (Phase III).''
    In the proposed rule, we did inadvertently include UXO/MEC 
detonations as an example impulsive source in one location when 
referencing the 160-dB Level B harassment threshold, which has been 
removed in this final rule. We have also clarified that given Ocean 
Wind would be limited to detonating one UXO/MEC per day, the TTS 
thresholds provided in Table 5 are used to estimate the potential for 
Level B (behavioral) harassment. In both the proposed rule and this 
final rule, NMFS applied the TTS threshold to determine the received 
level at which Level B harassment (which includes both behavioral 
responses and TTS) may occur. Hence, no adjustments to take estimates 
is necessary.

Mitigation

    Comment 10: Commenters recommended that NMFS require Ocean Wind to 
implement the best commercially available combined NAS technology to 
achieve the greatest level of noise reduction and attenuation possible 
for pile driving. A commenter recommended that NMFS require, at a 
minimum, a 10-dB reduction in SEL, but other commenters recommended 
that NMFS require a minimum of 15-dB or greater reductions, citing to 
successes described in Bellman et al. (2020 and 2022) and recommended 
``state-of-the art'' methods using a combination of two NAS systems 
simultaneously. A commenter further stated that NMFS should require 
field measurements to be taken throughout the construction process, 
including on the first pile installed, to ensure compliance with noise 
reduction requirements. A commenter also suggested that NMFS require 
Ocean Wind to use HRG acoustic sources at the lowest practicable source 
levels needed to meet the objectives of the site characterization 
surveys.
    Response: NMFS agrees with the suggestion made by the commenters 
that underwater noise levels should be reduced to the greatest degree 
practicable to reduce impacts on marine mammals. As described in both 
the proposed and final rule, NMFS has included requirements for sound 
noise attenuation methods that successfully (as evidenced by required 
sound field verification measurements) reduce real-world noise levels 
produced from impact pile driving of foundation installation to, at a 
minimum, the levels provided by JASCO modeled for 10-dB reduction, as 
analyzed in the proposed rule. Preliminary sound measurements from 
South Fork Wind, also an Orsted project, indicate that with multiple 
NAS systems, measured sound levels during impact driving foundation 
piles using a 4,000 kJ hammer are below those modeled assuming a 10-dB 
reduction and suggest, in fact, that two systems may sometimes be 
necessary to reach the targeted 10-dB reductions. While NMFS is 
requiring that Ocean Wind reduce sound levels to match the model 
outputs analyzed (assuming a reduction of 10 dB), we are not requiring 
greater reduction as it is currently unclear (based on measurements to 
date) whether greater reductions are consistently practicable for these 
activities, even if multiple NAS systems are used.
    In response to the recommendation by the commenters for NMFS to 
confirm that a 10-dB reduction is achieved, NMFS clarifies that, 
because no unattenuated piles would be driven, there is no way to 
confirm a 10-dB reduction; rather, in-situ SFV measurements will be 
required to confirm that sound levels are at or below those modeled 
assuming a 10-dB reduction.
    Regarding the recommendation that Ocean Wind should utilize its HRG 
acoustic sources at the lowest practicable source level to meet the 
survey objective, NMFS agrees with this suggestion and has incorporated 
this requirement into the final rule.
    Comment 11: To minimize the risk of vessel strikes for all whales, 
and especially in recognition of the imperiled state of North Atlantic 
right whales, commenters recommended that NMFS require a mandatory 10-
kn speed restriction for all project vessels (including PSO survey 
vessels) at all times, except for reasons of safety, and

[[Page 62908]]

in all places except in limited circumstances where the best available 
scientific information demonstrates that whales do not occur in the 
area. Other commenters made the same recommendation but suggested no 
exceptions. Alternatively, some suggested that project proponents could 
work with NMFS to develop an ``Adaptive Plan'' that modifies vessel 
speed restrictions if the monitoring methods are proven to be effective 
when vessels are traveling 10 kn or less. Commenters stated that this 
Adaptive Plan must follow a scientific study design. A commenter 
suggested that if the Adaptive Plan is scientifically proven to be 
equally or more effective than a 10-kn speed restriction, that the 
Adaptive Plan could be used as an alternative to the 10-kn speed 
restriction.
    Response: NMFS agrees with the commenters that vessel strikes pose 
a risk to North Atlantic right whales (and all large whales broadly). 
Based on the density information provided by Roberts et al. (2023), 
most large whale species are less frequently found within the project 
area during the months when foundation installation, which requires the 
use of multiple vessels, would occur (i.e., May through November, and 
December, if approved by NMFS). Specifically in the New Jersey region, 
there is no ESA critical habitat or areas wherein large whales are 
expected to congregate or remain in the area for extended periods of 
time (e.g., no foraging biologically important areas (BIAs) are located 
within the project area; thereby, decreasing the time over which they 
are available to interact with vessels). Furthermore, while we do 
acknowledge that there is no time of year when North Atlantic right 
whales are not found within the Project area at all, NMFS, as described 
in the proposed rule and included in this final rule, is requiring 
Ocean Wind to reduce speeds to 10 kn or less in several circumstances 
when North Atlantic right whales are known to be present or more likely 
to be in the area, which include, but are not limited to, all Slow 
Zones (Dynamic Management Area or acoustic Slow Zone), from November 1-
April 30 in the specified geographical region, and if a North Atlantic 
right whale is detected visually or acoustically in the project area. 
Additionally, aside from any requirements of this rule, Ocean Wind is 
required to comply with all spatial and temporal speed restrictions 
outlined in applicable regulations. Altogether, these speed 
requirements align with the commenter's recommendation.
    The required mitigation measures, all of which were included in the 
proposed rule and are now required in the final rule, can be found in 
Sec.  217.264(b) of the regulatory text. These contain speed 
restriction requirements, vessel actions in the event mothers and 
calves/pods approach the vessel (e.g., shifting into neutral, etc.), 
separation distances for specific species, and actions to take in the 
event marine mammal(s) are sighted, among other requirements. For the 
final rule, NMFS has also included a requirement that all vessels be 
equipped with automatic identification system (AIS) to facilitate 
compliance checks with the speed limit requirements. Per the proposed 
rule, on July 19, 2023, Ocean Wind submitted a draft Vessel Strike 
Avoidance Plan to NMFS for review and approval. At least 180 days prior 
to when the Project would seek to travel above 10 knots and deploy PAM 
buoys (anticipated in spring 2024), Ocean Wind must submit a PAM plan 
to NMFS for review and approval. Without an approved PAM Plan for the 
transit corridor in place, Ocean Wind would not be able to travel over 
10 kn.
    While NMFS acknowledges that vessel strikes can result in injury or 
mortality of marine mammals, we have analyzed the potential for vessel 
strike resulting from Ocean Wind's activity and have determined that 
based on the required mitigation measures specific to vessel strike 
avoidance included in the final rule and issued LOA, which are designed 
to effect the least practicable adverse impact on marine mammals, the 
potential for vessel strike is so low as to be discountable and no 
vessel strikes are expected or authorized.
    Additionally, based on this information, we have determined no 
blanket 10-kn vessel-speed restriction is necessary.
    Comment 12: Commenters recommended that NMFS should prohibit pile 
driving during periods of highest risk for North Atlantic right whales, 
which they defined as times of the highest relative density of animals 
during foraging and migration, and times where cow-calf pairs, pregnant 
females, surface active groups (that are foraging or socializing), or 
aggregations of three or more whales, are not expected to be present. 
Citing multiple information sources, commenters further specifically 
recommended the seasonal restriction for pile driving be expanded to 
November 1 through April 30 to reflect the period of highest detections 
of vocal activity, sightings, and abundance estimates of North Atlantic 
right whales. Commenters recommended prohibiting pile driving during 
seasons when protected species are known to be present or migrating in 
the Project area, in addition to any dynamic restrictions due to the 
presence of North Atlantic right whale or other endangered species. 
Also, for UXO/MEC detonations, a commenter implied that the seasonal 
restrictions from January 1 through April 30, annually, are not enough 
to protect North Atlantic right whales but did not recommend specific 
times of year when pile driving and UXO/MEC detonation should not 
occur.
    Response: NMFS has restricted foundation installation pile driving 
from January through April, which represent the times of year when 
North Atlantic right whales are most likely to be in the project area. 
We recognize that the density of whales begins to elevate in December; 
however, it is not until January when density greatly increases. Ocean 
Wind has indicated that to complete the project, pile driving in 
December may be required. In this final rule, NMFS has included an 
additional measure wherein pile driving in December must be avoided to 
the maximum extent practicable but may occur if necessary, provided 
NMFS prior approval. In any time of year when foundation installation 
is occurring, a sighting or acoustic detection of a North Atlantic 
right whale at any distance triggers a pile driving delay or shutdown. 
We also reiterate that Ocean Wind is required to implement a minimum 
visibility zone in December (2,500 m) as compared to other project 
months (1,650 m), reflecting the results of JASCO's underwater sound 
propagation modeling. With the application of these enhanced mitigation 
and monitoring measures in December, impacts to the North Atlantic 
right whale will be further reduced, if any are encountered when 
transiting through the Migratory Corridor.
    Regarding further restrictions on pile driving in the month of 
November, as noted in the comments and supporting information, and 
acknowledged by NMFS in both the proposed and final rules, North 
Atlantic right whale distribution is changing due to climate change and 
other factors, and they are present year round in the vicinity of the 
project, with some detections of mothers with calves or feeding 
behaviors in the vicinity of the project. However, as shown in Roberts 
et al. (2023), which NMFS considers the best available scientific 
information regarding marine mammal densities in the Atlantic Ocean, it 
is not until January that densities begin to significantly increase. 
Further, North Atlantic right whales are not likely to be engaged in 
feeding behaviors in the project area, from May to November or 
otherwise, as the project area is primarily a migratory corridor for 
North Atlantic right whales and, while

[[Page 62909]]

some opportunistic foraging may occur, the waters off of New Jersey do 
not include known foraging habitat for North Atlantic right whales. As 
described in the Marine Mammal section, foraging habitat is located in 
colder, more northern waters including southern New England, the Gulf 
and Maine, and Canada. For these reasons, and given the inclusion of 
December in the seasonal impact pile driving restriction, except with 
NMFS prior approval, NMFS finds that further expansion of the seasonal 
impact pile driving restrictions (beyond December-April) is 
unwarranted.
    Inasmuch as comments may be suggesting that NMFS prohibit pile 
driving when any protected species are present, it would not be 
practicable to implement, as there is no time of year when some species 
of marine mammals are not present.
    Regarding a commenter's assertion that the January to April pile 
driving and UXO/MEC detonation moratorium is insufficient, the 
commenter did not propose a different time period or moratorium for 
NMFS to evaluate and consider for this final rule. In the proposed 
rule, we acknowledged that Ocean Wind had committed to not detonating 
UXOs/MECs from November 1 through April 30, annually, to reduce impacts 
to the North Atlantic right whale, and we have carried that requirement 
forward here in the final rule.
    Comment 13: A commenter recommended that, for site assessment 
surveys, NMFS: (1) increase the size of the clearance and shutdown 
zones for site assessment surveys to 500 m for all large whales and 
1,000 m for North Atlantic right whales, respectively; (2) require a 
1,000-m acoustic clearance zone (i.e., necessitating the use of PAM for 
HRG surveys); and (3) require that any unidentified large whale within 
1,000 m of the vessel be considered a North Atlantic right whale.
    Response: As described in the proposed and final rules, the 
required 500-m Shutdown Zone for North Atlantic right whales exceeds 
the modeled distance to the largest 160-dB Level B harassment isopleth 
(141 m during sparker use) by a large margin, minimizing the likelihood 
that they will be harassed in any manner by this activity. For other 
ESA-listed species (e.g., fin and sei whales), the NMFS Greater 
Atlantic Regional Fisheries Office (GARFO) 2021 Offshore Wind Site 
Assessment Survey Programmatic ESA consultation (see https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic) determined that a 100-
m shutdown zone is sufficient to minimize exposure to noise that could 
be disturbing. Accordingly, NMFS has adopted this shutdown zone size 
for all baleen whale species, other than the North Atlantic right 
whale. Commenters do not provide additional scientific information for 
NMFS to consider to support their recommendation to expand the Shutdown 
Zone. Given that these surveys are relatively low impact and that NMFS 
has prescribed a precautionary North Atlantic right whale Shutdown Zone 
that is larger (500 m) than the largest estimated harassment zone (141 
m), NMFS has determined that an increase in the size of the Shutdown 
Zone during HRG surveys is not warranted.
    Regarding the use of acoustic monitoring to implement the shutdown 
zones, NMFS does not consider acoustic monitoring an effective tool for 
use with HRG surveys for the reasons discussed below and therefore has 
not required it in this final rule. As described in the Mitigation 
section, NMFS has determined that the prescribed mitigation 
requirements are sufficient to effect the least practicable adverse 
impact on all affected species or stocks.
    The commenters do not provide additional scientific information for 
NMFS to consider to support their recommendation to require PAM during 
site assessment surveys. NMFS disagrees that this measure is warranted 
because it is not expected to be effective for use in detecting the 
species of concern. It is generally accepted that, even in the absence 
of additional acoustic sources, using a towed passive acoustic sensor 
to detect baleen whales (including North Atlantic right whales) is not 
typically effective because the noise from the vessel, the flow noise, 
and the cable noise are in the same frequency band and will mask the 
vast majority of baleen whale calls. Vessels produce low-frequency 
noise, primarily through propeller cavitation, with main energy in the 
5-300 Hz frequency range. Source levels range from about 140 to 195 
decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 
2009), depending on factors such as ship type, load, and speed, and 
ship hull and propeller design. Studies of vessel noise show that it 
appears to increase background noise levels in the 71-224 Hz range by 
10-13 dB (Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 
2012). PAM systems employ hydrophones towed in streamer cables 
approximately 500 m behind a vessel. Noise from water flow around the 
cables and from strumming of the cables themselves is also low 
frequency and typically masks signals in the same range. Experienced 
PAM operators (Thode et al., 2017) emphasized that a PAM operation 
could easily report no acoustic encounters, depending on species 
present, simply because background noise levels rendered any acoustic 
detection impossible. The same report stated that a typical eight-
element array towed 500 m behind a vessel could be expected to detect 
delphinids, sperm whales, and beaked whales at the required range, but 
not baleen whales, due to expected background noise levels (including 
seismic noise, vessel noise, and flow noise).
    Further, there are several additional reasons why we disagree that 
use of PAM is warranted for HRG surveys, specifically. While NMFS 
agrees that PAM can be an important tool for augmenting detection 
capabilities in certain circumstances (e.g., foundation installation), 
its utility in further reducing impacts during HRG survey activities is 
limited. First, for this activity, the area expected to be ensonified 
above the Level B harassment threshold is relatively small (a maximum 
of 141 m); this reflects the fact that the source level is 
comparatively low and the intensity of any resulting impacts would be 
lower level and, further, it means that inasmuch as PAM will only 
detect a portion of any animals exposed within a zone, the overall 
probability of PAM detecting an animal in the harassment zone is low. 
Together, these factors support the limited value of PAM for use in 
reducing take for activities/sources with smaller zones. Also, PAM is 
only capable of detecting animals that are actively vocalizing, while 
many marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult.
    Given that the effects to marine mammals from the types of HRG 
surveys authorized in this final rulemaking are expected to be limited 
to low level behavioral harassment even in the absence of mitigation, 
the limited additional benefit anticipated by adding this detection 
method (especially for North Atlantic right whales and other low 
frequency cetaceans, species for which PAM has limited efficacy during 
this activity), and the cost and impracticability of implementing a 
full-

[[Page 62910]]

time PAM program, we have determined the current requirements for 
visual monitoring are sufficient to ensure the least practicable 
adverse impact on the affected species or stocks and their habitat 
during HRG surveys.
    Comment 14: Commenters recommended that NMFS require pile-driving 
clearance and shutdown zones for large whales (other than North 
Atlantic right whale) that are large enough to avoid all take by Level 
A harassment and minimizes Level B harassment to the most practicable 
extent.
    Response: The commenters do not provide additional scientific 
information for NMFS to consider to support their recommendation to 
expand clearance and shutdown zones to effect the least practicable 
adverse impact on marine mammals, particularly large whales, excluding 
the North Atlantic right whale. The required clearance zone for large 
whales (other than North Atlantic right whale) equates to the largest 
modeled distance to the largest Level A harassment threshold, plus 20 
percent, for the low frequency hearing group, assuming 10 dB of sound 
attenuation. The shutdown zone represents the largest distance to the 
cumulative sound exposure level (SELcum) for the Level A 
harassment isopleth. Both of these zones are typically rounded up for 
PSO clarity. These requirements minimize Level B harassment and avoid 
almost all Level A harassment of large whales (note that for all but 
minke whales (n=22), all other species of large whales have 6 or fewer 
takes by Level A harassment across all 5 years of the rule). Further 
enlargement of these zones could interrupt and delay the project such 
that a substantially higher number of days would be needed to complete 
the construction activities, which would incur additional costs, but 
importantly also potentially increase the number of days that marine 
mammals are exposed to the disturbance. Accordingly, NMFS has 
determined that enlargement of these zones is not warranted, and that 
the existing required clearance and shutdown zones support a suite of 
measures that will effect the least practicable adverse impact on other 
large whales.
    Comment 15: Commenters recommended that NMFS require clearance and 
shutdown zones for North Atlantic right whales specifically, including: 
(1) a minimum of 5,000 m for the visual clearance, acoustic clearance, 
and shutdown zones in all directions from the driven pile location; and 
(2) an acoustic shutdown zone that would extend at least 2,000 m in all 
directions from the driven pile location.
    Response: The Commenters do not provide additional scientific 
information for NMFS to consider to support their recommendation to 
expand clearance and shutdown zones for impact pile driving to effect 
the least practicable adverse impact on North Atlantic right whales. 
The proposed rule and this final rule require impact pile driving to be 
delayed or shutdown if a North Atlantic right whale is visually or 
acoustically detected at any distance. Given NMFS neither anticipates 
nor authorizes any take by Level A harassment of North Atlantic right 
whales, NMFS believes that these measures will effect the least 
practicable adverse impact on the species. Delaying the project due to 
overly enlarged zone sizes would result in longer construction time 
frames, prolonging the time periods over which marine mammals may be 
exposed to construction-related stressors. Accordingly, NMFS has 
determined that enlargement of these zones is not warranted, and that 
the existing required clearance and shutdown zones support a suite of 
measures that will effect the least practicable adverse impact on North 
Atlantic right whales and other affected species.
    Comment 16: For all large whale species, commenters recommended 
that NMFS require real-time PAM during impact pile driving to monitor 
the acoustic clearance and acoustic shutdown zones, and must assume a 
detection range of at least 10 km. They stated that this monitoring 
must be undertaken from a vessel other than the pile driving vessel or 
from a stationary unit to avoid masking of the hydrophone from the pile 
driving vessel or other development-related noise.
    Response: As described in the proposed rule, NMFS is requiring the 
use of PAM to monitor 10-km zones around the piles, and that the 
systems be capable of detecting marine mammals during pile driving 
within this zone. However, NMFS acknowledges that this could be made 
clearer and has modified Table 36 to clearly describe this 10 km PAM 
monitoring zone. Ocean Wind is required to submit a PAM Plan to NMFS 
for approval at least 180 days prior to the planned impact pile driving 
start date. NMFS will not approve a Plan where hydrophones used for PAM 
would be deployed from the pile driving vessel as this would result in 
hydrophones inside the bubble curtains, which would clearly be 
ineffective for monitoring; therefore, there is no need to explicitly 
state in this rule that this would not be allowed. Further, Ocean Wind 
may launch PAM drones from shore; hence, NMFS is not requiring that 
Ocean Wind deploy any monitoring systems from a vessel.
    Comment 17: Comments recommended that NMFS: (1) require all 
offshore personnel to be trained to identify North Atlantic right 
whales and other large whales, and (2) that all vessels maintain a 500-
m separation distance from North Atlantic right whale, 100 m for other 
large whale species while also maintaining a vigilant watch for North 
Atlantic right whale and other large whale species. Commenter(s) also 
recommended that NMFS require vessels to slow down or maneuver their 
vessels appropriately to avoid a potential interaction with a North 
Atlantic right whale and other large whale species. Commenter(s) also 
suggested that NMFS require that vessels maintain a separation distance 
from North Atlantic right whales.
    Response: NMFS notes that these requirements were included in the 
proposed rule (87 FR 64868, October 26, 2022) and are carried forward 
into this final rule.
    Comment 18: Commenters recommended that NMFS implement diel 
restrictions for site assessment and characterization activities within 
1.5 hours of civil sunset and in low-visibility conditions when the 
visual clearance zone and shutdown zone (referred to as the ``exclusion 
zone'' in Appendix A) cannot be visually monitored by the Lead PSO.
    Response: NMFS acknowledges the limitations inherent in visual 
detection of marine mammals at night. The proposed rule and this final 
rule requires that visual PSOs use alternative technology (i.e., 
infrared or thermal cameras) during periods of low visibility to 
monitor the clearance and shutdown zones. We note that no Level A 
harassment is expected to result from exposure to HRG equipment, even 
in the absence of mitigation, given the characteristics of the sources 
planned for use (supported by the very small estimated Level A 
harassment zones; i.e., <36.5 m (119.8 feet (ft)) for all sources). 
Regarding Level B harassment, any potential impacts are limited to 
short-term behavioral responses. Given these factors combined with 
other mitigation measures, NMFS has determined that more restrictive 
mitigation requirements are not warranted.
    Restricting surveys in the manner suggested by the commenters may 
reduce marine mammal exposures by some degree at night if, in fact, 
detectability is less at night and animals

[[Page 62911]]

do approach within the small harassment zone, but would not result in 
any significant reduction in either intensity or duration of noise 
exposure over the course of the surveys. In fact, the restrictions 
recommended by the commenters could result in the surveys spending 
increased total time (number of days) on the water introducing noise 
into the marine environment, which may result in greater overall 
impacts to marine mammals; thus, the commenters have not demonstrated 
that such a requirement would result in a net benefit. Furthermore, 
restricting the ability of the applicant to begin operations only 
during daylight hours, which could result in the applicant failing to 
collect the data they have determined is necessary within the specific 
timeframe and, subsequently, may necessitate the need to conduct 
additional surveys in the future across additional days. This would 
result in significantly increased costs incurred by the applicant. 
Thus, the restriction suggested by the commenters would not be 
practicable for the applicant to implement. In consideration of the 
likely effects of the activity on marine mammals absent mitigation, 
potential unintended consequences of the measures as proposed by the 
commenters, and practicability of the recommended measures for the 
applicant, NMFS has determined that restricting operations as 
recommended is not warranted or practicable in this case.
    Comment 19: Commenter recommended that NMFS prohibit site 
assessment and site characterization activities during times of highest 
North Atlantic right whale risk (foraging and migration, and times when 
mother-calf pairs, pregnant females, surface active groups, or 
aggregations of three or more whales, which is indicative of feeding or 
social behavior), using the best available science to define high-risk 
timeframes.
    Response: NMFS neither anticipates, nor authorizes, take of North 
Atlantic right whales by Level A harassment from this activity. 
Furthermore, NMFS expects that the required Vessel Strike Avoidance and 
HRG mitigation measures will affect the least practicable adverse 
impact on the species from this activity. While NMFS is authorizing 
three total takes of three North Atlantic right whales by Level B 
harassment from HRG surveys over the 5-year effective period of this 
rulemaking, the required mitigation measures will affect the least 
practicable adverse impact on North Atlantic right whales. 
Specifically, the largest modeled Level B harassment zone size for the 
sparker (141 m) is already much smaller than the required separation, 
clearance, and shutdown distances for North Atlantic right whale (500 
m) and any unidentified large whale that would be treated as if it were 
a North Atlantic right whale. Any Level B harassment that is not 
avoided is not expected to impact feeding or other behaviors in a 
manner that poses energetic or reproductive risks for any individuals. 
Given the minimal anticipated impacts of the HRG survey, NMFS disagrees 
that additional mitigation measures are warranted.
    Comment 20: A commenter suggested that all acoustic and visual 
monitoring must begin at least 60 minutes prior to the start of or re-
start of pile driving and must be conducted throughout the entire 
duration of the pile-driving event. They also suggested that visual 
monitoring must continue for 30 minutes after pile driving has ceased.
    Response: NMFS notes that the commenter's recommended mitigation 
measures were included in the proposed rule and carried forward in this 
final rule. The proposed rule also included a requirement that Ocean 
Wind review PAM data at least 24 hours immediately prior to pile 
driving for situational awareness, which has also been included in this 
final rule. NMFS notes that if monitoring continues throughout any 
pauses in pile driving after it commences, monitoring would not have to 
occur for 60 minutes; however, the clearance zones measures regarding 
not starting pile driving until the zones are clear would become 
applicable.
    Comment 21: Commenters recommended that NMFS should restrict pile 
driving at night and during periods of low visibility to protect all 
large whale species. This would include no pile driving being allowed 
to begin after 1.5 hours before civil sunset or during times where the 
visual clearance zone and shutdown zone (called the ``exclusion zone'' 
in the Appendix) cannot be visually monitored, as determined by the 
Lead PSO.
    If nighttime pile driving is to be allowed, the commenters 
recommended that NMFS require that pile driving be initiated no later 
than 1.5 hours prior to civil sunset at the latest, rather than 1.5 
hours after civil sunset as stated in the proposed rule, in order to 
maximize monitoring activities during hours of optimal visibility/
daylight. Impact pile driving started at least 1.5 hours prior to civil 
sunset during good visibility conditions can then continue after dark, 
as necessary providing the best available infrared technologies are 
used to support visual monitoring of the clearance and exclusion zones 
during periods of darkness (see Attachment 1).
    A commenter did caveat this recommendation by stating that NMFS 
should only allow pile driving to continue after dark if the activity 
began during daylight hours and must continue for human safety or due 
to installation feasibility (i.e., instability or pile refusal) but 
only if required nighttime monitoring protocols are followed.
    A commenter suggested that if pile driving must continue after dark 
due to safety reasons, Ocean Wind should be required to notify NMFS 
with these reasons and an explanation for exemption. Additionally, a 
commenter stated that a summary of the frequency of these exceptions 
must be made publicly available to ensure that these are indeed 
exceptions, rather than the norm, for the project.
    Response: NMFS recognizes the need to protect marine mammals that 
may be exposed to pile-driving noise, as well as the challenges of 
detecting marine mammals in low-light conditions. However, we note that 
while it may be more difficult to detect marine mammals at night, there 
are benefits to completing the pile driving in a shorter total amount 
of time, and exposing marine mammals to fewer days of pile-driving 
noise. On July 19, 2023, Ocean Wind submitted to NMFS a final Nighttime 
Pile Driving Plan. This plan includes use of multiple Electro-Optical/
Infra-Red (E.O./IR) cameras with cooled sensors and 32-channel 
hydrophone arrays to conduct PAM for marine mammal detection at night 
which will maximize marine mammal detection during nighttime pile 
driving. With the implementation of this plan, Ocean Wind may conduct 
pile driving at night from June 1 through October 31, annually, as this 
is the period, based on the Roberts et al. (2023) data, where North 
Atlantic right whale densities are the lowest. We note that Ocean Wind 
will not be performing nighttime pile driving for every pile, nor even 
every day as pile driving will not occur every day. Further, some piles 
will be finished before hours of darkness and some piles may 
necessitate completion after dark due to safety and/or stability 
concerns. NMFS will continue to review reports submitted by Ocean Wind 
and will maintain the provision to implement adaptive management, if 
needed. Given the requirements of the nighttime plan, which increase 
the likelihood of detection and the effective implementation of the 
required mitigation, NMFS has determined that allowing nighttime pile 
driving in the identified months is appropriate. For those months when 
nighttime pile driving is not allowed, the requirement

[[Page 62912]]

has been corrected to indicate that initiation of pile driving must 
begin 1.5 hours prior to (not after) civil sunset, as we agree with the 
commenter and that was the intention in the proposed rule.
    Regarding a commenter's suggestion for additional and specific 
reporting in the event that piles must be finished after dark due to 
safety and/or stability concerns, we do not agree that this measure 
would be either beneficial or necessary. This is a blanket provision 
necessary for the safety of the crew and vessels and do not see what 
benefit tracking this available provision would be. As described in the 
rule, Ocean Wind only intends to install a maximum of 2 piles per day, 
but may only install 1 pile on many days. Because of the limited 
duration of pile driving predicted, we do not expect that Ocean Wind 
finishing pile driving after civil sunset would be a common occurrence, 
necessitating the need for additional restrictions or specific 
reporting. Regarding the reporting requirement specified by the 
commenter, we note that we are already requiring weekly reports during 
foundation installation, which would contain information that would 
inform on how long impact pile driving occurred and if it was necessary 
for this activity to occur during hours of darkness (i.e., information 
that would document the daily start and stop of all pile-driving 
activities). These weekly reports would be combined into monthly and 
annual reports. We do not plan to make the weekly or monthly reports 
publicly available, due to the number or reports that would become 
available; however, as described in Comment 25, we do plan to make the 
final reports available, which would summarize all of the information 
contained in the weekly and monthly reports.
    Comment 22: A commenter recommended that NMFS not allow pile 
driving to begin if monitoring results in either an acoustic detection 
within the acoustic clearance zone or a visual detection within the 
visual clearance zone of one or more North Atlantic right whales. They 
also stated that pile driving should not be initiated or must be shut 
down if underway (with an exception noted due to pile stability and 
human safety) if monitoring results in an acoustic detection within the 
acoustic shutdown zone or a visual detection within the visual shutdown 
zone of one or more North Atlantic right whales. They added that if 
pile driving is underway and a North Atlantic right whale is visually 
detected at any distance from the pile by a PSO, pile driving must be 
shut down. A commenter also recommended NMFS include a condition for 
resumption of pile driving after the Lead PSO confirms that no North 
Atlantic right whale or other protected species have been detected 
within the acoustical and visual clearance zones. Finally, a commenter 
acknowledged the exemption for safety from shutdown but recommends that 
if this exemption occurs, the project must immediately notify the NMFS 
with reasons and explanation for exemption and a summary of the 
frequency of these exceptions must be publicly available to ensure that 
these are the exception rather than the norm for the project. Some 
commenters also recommended that HRG surveys should be required to use 
a soft start, ramp-up procedure to encourage any nearby marine life to 
leave the area.
    Response: The recommended requirement that any detection of a North 
Atlantic right whale (visually or acoustically in the associated 
clearance zone) during the clearance period would trigger a delay to 
the onset of pile driving was included in the proposed rule and is 
included in this final rule. Similarly, the recommended requirement 
that any detection of a North Atlantic right whale (visually or 
acoustically in the associated exclusion zone) while pile driving is 
occurring would trigger a shutdown of pile driving (with the noted 
safety exception) was included in the proposed rule and is included in 
this final rule. In this final rule, NMFS has also added the 
requirement that shutdown of pile driving must occur if a North 
Atlantic right whale is visually detected at ``any distance.'' 
Regarding the resumption of pile driving following a shutdown, PSOs 
would be required to monitor clearance zones prior to impact pile 
driving starting. Impact pile driving would be allowed to begin only 
when the Lead PSO confirms that no North Atlantic right whales or other 
marine mammal species have been detected in the applicable clearance 
zones and the PAM operator confirms no detection of North Atlantic 
right whales. A soft-start to pile driving or ramp-up to HRG surveys 
would be required, as described in the proposed rule and also included 
in this final rule.
    Regarding a commenter's suggestion that in the event that 
mitigation actions are not undertaken based on specific exemptions, 
both the proposed and final rules require reporting weekly, monthly, 
and annual reports where Ocean Wind must provide reasons why mitigation 
actions could not occur (including for this exception). We acknowledge 
the importance of transparency in the reporting process and plan to 
make all final annual and 5-year marine mammal monitoring reports and 
final SFV report on our website, however, NMFS will not be making the 
weekly or monthly reports final given the amount of total reports that 
would be obtained over a 5-year period.
    Comment 23: A commenter expressed concern regarding 8 hours of pile 
driving, daily, for monopile foundations as they state that there are 
``no clear provisions for enforcement of these and other restrictions'' 
given the close proximity of other projects within the region.
    Response: Specific to the Project, NMFS notes that this comment is 
unfounded, as no other projects will begin impact pile driving off New 
Jersey during the same period Ocean Wind would begin. However, in 
discussing the concern more broadly, it is not clear what the commenter 
means by stating that there are ``no clear provisions for enforcement 
of these and other restrictions.'' The MMPA has a prohibition on the 
take of marine mammals and if Ocean Wind does not comply with the 
requirements of any issued LOA and their activities result in the take 
of marine mammals, then they will be subject to law enforcement. 
Violating the regulations and LOAs can result in civil and criminal 
penalties. More specifically, the developer is required to submit 
weekly and monthly reports to NMFS for review, that would detail 
exactly what was installed, what parameters of the impact hammer were 
used, and when piling began and ceased, among other things. 
Additionally, the applicant would provide SFV reports for NMFS' review 
to allow for a clear understanding as to the effectiveness of the sound 
attenuation measures and if additional action (e.g., modification to 
clearance or shutdown zones) is needed.
    Comment 24: A commenter stated that at first, UXOs/MECs must be 
evaluated to see if they can be moved without detonation. If detonation 
must occur, the commenter stated that the mitigation measures for pile 
driving should be observed the same with regards to including noise 
abatement technology, clearance zones, and the use of PSOs. If the 
impact area is larger than predicted after detonation, the commenter 
suggests that expanded mitigation measures should be implemented.
    Response: As described in the proposed rule and included in this 
final rule, Ocean Wind would use the As Low As Reasonably Practical 
(ALARP) approach such that detonation would be the last resort to 
removing a UXO/MEC. That is, Ocean Wind is required to use detonation 
as a means of removing

[[Page 62913]]

UXO/MECs only if all other options of removal have been exhausted. Also 
as described in the proposed rule and included in this final rule, 
Ocean Wind would be required to implement visual monitoring using PSOs 
and PAM prior to detonation. These PSOs and PAM operators would be 
required to clear the appropriate zones prior to Ocean Wind detonating 
any UXO/MEC. The proposed rule also included the measure that SFV must 
be conducted on every UXO/MEC, which has been carried forward in this 
final rule. Additionally, NMFS requires that a double big bubble 
curtain must be used that is positioned far enough away from the blast 
such that the hose nozzles are not damaged.
    Furthermore, NMFS notes that we retain the ability to modify 
existing mitigation measures through adaptive mitigation in the event 
new information becomes available and if doing so creates a reasonable 
likelihood of more effectively accomplishing the goal(s) of the 
measure.
    Comment 25: A commenter asserted that the LOA must include 
requirements to hold all vessels associated with site characterization 
surveys accountable to the ITA requirements, including vessels owned by 
the developer, contractors, employees, and others regardless of 
ownership, operator, and contract. They stated that exceptions and 
exemptions will create enforcement uncertainty and incentives to evade 
regulations through reclassification and redesignation. They 
recommended that NMFS simplify this by requiring all vessels to abide 
by the same requirements, regardless of size, ownership, function, 
contract or other specifics.
    Response: NMFS notes the proposed rule and this final rule includes 
a general condition that extends the requirements imposed on Ocean Wind 
to persons it authorizes or funds to conduct activities on its behalf 
e.g., vessel operators) while conducting the specified activities. The 
rule also states that Ocean Wind must ensure that the vessel operator 
and other relevant vessel personnel, including the PSO team, are 
briefed on all responsibilities, communication procedures, marine 
mammal monitoring protocols, operational procedures, and rule 
requirements prior to the start of survey activity, and when relevant 
new personnel join the survey operations.
    Comment 26: A commenter stated that the LOA must include conditions 
for the survey and construction activities that will first avoid 
adverse effects on North Atlantic right whales in and around the area 
and then minimize and mitigate the effects that cannot be avoided. This 
should include a full assessment of which activities, technologies and 
strategies are truly necessary to achieve site characterization and 
construction to inform development of the offshore wind projects and 
which are not critical, asserting that NMFS should prescribe the most 
appropriate techniques that would produce the lowest impact while 
achieving the same goals while prohibiting those other tools/techniques 
that would cause more frequent, intense, or long-lasting effects.
    Response: NMFS is required to authorize the requested incidental 
take if it finds such incidental take of small numbers of marine 
mammals by the requestor while engaging in the specified activities 
within the specified geographic region will have a negligible impact on 
such species or stock and where appropriate, will not have an 
unmitigable adverse impact on the availability of such species or stock 
for subsistence uses. As described in this notice of final rulemaking, 
NMFS finds that small numbers of marine mammals may be taken relative 
to the population size of the affected species or stocks and that the 
incidental take of marine mammal from all of Ocean Wind's specified 
activities combined will have a negligible impact on all affected 
marine mammal species or stocks. It is not within NMFS' authority to 
determine the requestor's specified activities.
    The MMPA requires that we include mitigation measures that will 
effect the least practicable adverse impact on the affected species and 
stocks. In practice, NMFS agrees that the rule should include 
conditions for the construction activities that will first avoid 
adverse effects on North Atlantic right whales in and around the 
project area, where practicable, and then minimize the effects that 
cannot be avoided. NMFS has determined that this final rule meets the 
requirement to effect the least practicable adverse impact on the 
affected marine mammal stocks and their habitat. The commenter does not 
make any specific recommendations regarding mitigation measures.

Monitoring, Reporting, and Adaptive Management

    Comment 27: Several commenters recommended that NMFS increase the 
frequency of information review for adaptive management to at least 
once a quarter and also have a mechanism in place to undertake review 
and adaptive management on an ad hoc basis if a serious issue is 
identified (e.g., if unauthorized levels of Level A take of marine 
mammals are reported or if serious injury or mortality of an animal 
occurs).
    Response: NMFS may undertake review and adaptive management actions 
at any time under the regulations, as written. Ocean Wind is required 
to submit weekly, monthly, and annual reports that NMFS will review in 
a timely manner and may act on pursuant to the adaptive management 
provisions at any time, and therefore, a separate specific quarterly 
review is unnecessary.
    Comment 28: A commenter recommended that NMFS require robust 
monitoring protocols during pre-clearance and when site assessment and 
characterization activities are underway, including: (1) passive 
acoustic monitoring from a nearby vessel (other than the survey vessel) 
or a stationary unit to avoid masking; (2) visual monitoring of the 
clearance zone for North Atlantic right whales and other large whales 
by four on-duty PSOs on each survey vessel scanning 180 degrees); and 
(3) visual and acoustic monitoring beginning 30 minutes prior to 
commencement or re-initiation of survey activities through the duration 
of the survey.
    Response: Regarding the recommendation to require acoustic 
monitoring (in any form) to support clearance and shutdown requirements 
for HRG surveys, please see NMFS response to Comment 13, which 
describes why PAM is not warranted for HRG surveys. With respect to the 
number of PSOs, NMFS is not requiring four on-duty PSOs given the very 
small harassment zone sizes associated with HRG surveys. In the 
proposed rule, and in this final rule, PSOs are required to commence 
monitoring for marine mammals 30 minutes prior to the activity before 
HRG surveys begin; hence, this recommendation has already been 
satisfied.
    Comment 29: A commenter recommended that NMFS require infrared 
technology to support visual monitoring for all vessels responsible for 
crew transport and during any pile-driving activities that occur in 
periods of darkness or nighttime to supplement the visual monitoring 
efforts for marine mammals. They additionally included a suggestion 
that additional observers and monitoring approaches (i.e., infrared, 
drones, hydrophones) must be used, as determined to be necessary, to 
ensure that monitoring efforts for the clearance and shutdown zones are 
effective during daytime, nighttime, and during periods of poor 
visibility.
    Response: NMFS notes that most of the proposed recommendations were 
already included in the proposed rule

[[Page 62914]]

and have been carried forward here. Specifically, NMFS described in the 
proposed rule, and is requiring in the final rule, that infrared 
technologies and PAM hydrophone deployments be available and used 
before, during, and after pile driving. NMFS concurs with a suggestion 
by the commenter and has added a new requirement in the final rule to 
allow Ocean Wind to deploy drones to aid PAM efforts. Moreover, since 
publication of the proposed rule, Ocean Wind has submitted a nighttime 
pile driving plan (referred to as the Alternative Monitoring Plan) on 
July 19, 2023 that includes advanced technologies for monitoring marine 
mammals at night for both trained crew observers and PSOs. Once 
approved, NMFS will make the plan available on our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility.
    Comment 30: Some commenters recommended that additional monitoring 
of the visual clearance and shutdown zones must be undertaken by PSOs 
located on the pile-driving vessel and on an additional vessel that 
would circle the pile-driving site. They specified that a minimum of 
four PSOs must be on each vessel and must have two PSOs monitoring per 
shift operating on a two on, two off rotation, with the commenter 
suggesting that human observation be supplemented with IR technology 
and drones.
    Response: In the proposed rule, NMFS proposed to require two on-
duty PSOs on the pile-driving vessel and two on-duty PSOs on the 
secondary vessel, each covering 180 degrees, as proposed by a 
commenter. However, since that time, NMFS has determined that there are 
too few observers and is now requiring three on-duty PSOs on both 
platforms such that each PSO is responsible for 120-degree coverage, 
increasing detection effectiveness.
    Comment 31: A commenter recommended that NMFS should require SFV 
during installation of WTG and OSS foundations on the first monopile 
installed and then on a random sample of monopiles throughout the 
installation process. They also noted that they do not support the 
installation of unmitigated piles. They added that all sound source 
validation reports for field measurements must be made publicly 
available after being evaluated by both NMFS and BOEM prior to the 
installation of any additional monopiles being installed.
    Response: NMFS notes that the proposed rule and this final rule 
require noise abatement systems to be deployed during all impact pile 
driving activities to reduce noise levels to the modeled harassment 
isopleths, which will be validated through SFV. Additionally, the 
proposed rule and this final rule require SFV for the first three piles 
and additional piles where conditions suggest noise levels may be 
higher or propagate farther than those piles previously measured. Ocean 
Wind has the Lease Area data to identify if a pile would be more 
difficult to drive than the initial piles measured. Given these 
mitigation measures, NMFS disagrees that random sampling is necessary.
    As we describe above for Comment 22, we acknowledge the importance 
of transparency in the reporting process and plan to make all final SFV 
report on our website, however, NMFS will not be making any weekly or 
monthly final reports available, given the amount of total reports that 
would be obtained over a 5-year period. The SFV reports and information 
gleaned would be available in these final reports.
    Comment 32: The Commission suggested that the monitoring measures 
included in the proposed rule may not be sufficient in reducing the 
potential for Level A harassment of North Atlantic right whales, 
specifically indicating that visually monitoring a 3.5- to 3.8-km would 
prove difficult and cited literature (Oedekoven and Thomas, 2022) 
estimating effectiveness of marine mammal observers (MMOs) to be 54 
percent for detecting rorquals at 914 m or more, 31 percent for small 
cetaceans in pods of more than six, and 14 percent for small cetaceans 
in pods of six or fewer. The Commission did not provide any 
recommendations to increase visual detection capabilities.
    Response: The time of year when Ocean Wind would be conducting the 
majority of pile driving is when North Atlantic right whale density in 
the project area is very low. As provided in Table 17 and 18, one North 
Atlantic right whale Level A harassment exposure was estimated (0.9 
from WTG installation and 0.1 from OSS foundation installation). These 
estimates were derived without consideration of any mitigation (except 
10-dB of sound attenuation) or natural avoidance of marine mammals to 
avoid loud sounds. Hence, even without any monitoring or mitigation 
(with exception of 10-dB of sound attenuation from the modeling), the 
potential for PTS to occur is low. As described in response to Comment 
4, the Commission cites information from a paper related to the use of 
trained lookouts and a team of two on-duty MMOs on moving Navy military 
vessels actively engaged in sonar training (Oedekoven and Thomas, 2022) 
to support its argument that visual monitoring would prove difficult. 
We note that these ``trained lookouts'' are Navy personnel who are 
specifically trained as lookouts in contrast to NMFS-approved PSOs who 
are required to have specific education backgrounds, trainings, and 
experience before undertaking PSO duties (see requirements found in the 
regulations text at Section 217.265(a)). NMFS disagrees that the 
statistics generated from that report are relevant to the effectiveness 
of monitoring for the Project. Independent, NMFS-approved PSOs are 
required during all impact pile driving (see requirements found in 
217.265). At least three PSOs would be placed on the stationary pile 
driving platform and three PSOs would also be placed on each of two 
dedicated PSO vessels traveling at slow speeds (less than 10 kn) for a 
total of nine PSOs. Concurrently, real-time PAM is required to 
supplement visual monitoring during impact pile driving, UXO/MEC 
detonation, and select vessel transport. Further, Ocean Wind must 
monitor several times daily supplemental marine mammal detection 
information systems (e.g., the Right Whale Sighting Advisory System) to 
increase situational awareness. Hence, it is reasonable to assume that 
the effectiveness of marine mammal monitoring during the project is 
much greater than the two-person MMO team reported in Oedekoven and 
Thomas (2022). We note that the MMO team in Oedekoven and Thomas 
(2022), was not always using PAM in that study, and had significantly 
more Balaenoptera spp. sightings than the lookout team (see Table 2 in 
Oedekoven and Thomas (2022)). Given the monitoring measures that are 
required for the Project in combination with the mitigation measures 
(i.e., clearance and shutdown zones), NMFS disagrees that the 
monitoring measures will be insufficient to avoid Level A harassment 
(PTS) of North Atlantic right whales.
    Comment 33: The Commission recommended that NMFS require Ocean Wind 
to have PAM operators also review acoustic data for at least 24 hours 
prior to UXO/MEC detonations, when available.
    Response: We appreciate the Commission's suggestion and have 
incorporated it into the final rule.
    Comment 34: The Commission recommended that NMFS include a 
provision that the Lead PSO must have a minimum of 90 days of at-sea 
experience and must have had this experience within the last 18 months.

[[Page 62915]]

    Response: We appreciate the Commission's suggestion and have 
incorporated it into the final rule.
    Comment 35: A commenter stated that Ocean Wind should be required 
to use PSOs at all times when under way. They also suggested that PSOs 
complement their survey efforts using additional technologies, such as 
infrared detection devices when in low-light conditions.
    Response: NMFS is not requiring PSOs to be onboard every transiting 
vessel. However, as described in the proposed rule, as well as the 
final rule, Ocean Wind must have trained observers onboard all vessels. 
This observer may be a PSO or a crew member with no other duties if the 
vessel is operating above 10 kn. NMFS is also requiring Ocean Wind to 
provide a North Atlantic Right Whale Vessel Strike Avoidance Plan to 
NMFS 90 days prior to the onset of vessel use. Ocean Wind submitted 
that plan on July 19, 2023. Once approved, this plan will be made 
available on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility.
    Comment 36: A commenter recommended that the LOA should require all 
vessels supporting site characterization to be equipped with and using 
Class A Automatic Identification System (AIS) devices at all times 
while on the water. A commenter suggested this requirement should apply 
to all vessels, regardless of size, associated with the survey.
    Response: NMFS agrees that AIS should be required. This final rule 
includes a requirement that all vessels associated with the project be 
equipped with AIS.
    Comment 37: A commenter stated that monitoring reports are not 
enough to evaluate impacts to marine mammals from offshore wind impacts 
and instead suggests that on-the-ground, independent scientists and 
response teams be located in the area during activities conducted under 
incidental take authorizations to monitor for impacts and to respond 
immediately or investigate if anything occurs. The commenter suggested 
that an organization charged specifically with responding to endangered 
marine mammal incidents (which NMFS notes, the commenter did not choose 
to define or specify further), be fully funded by the State and Federal 
agencies to collect the animal and conduct an independent and thorough/
immediate investigation to determine the cause of death.
    Response: NMFS disagrees with the commenter's recommendations. NMFS 
emphasizes that this final rule authorizes incidental take by Level A 
and Level B harassment from auditory injury and behavioral disturbance. 
Moreover, no mortality or serious injury is anticipated or authorized 
in this final rule. During the specified activities identified for the 
Project, NMFS is requiring third-party, independent visual PSOs and PAM 
operators be present to provide monitoring support and to instigate 
mitigative actions, if they are needed, such as shutdowns or delays to 
activities. These specific personnel are also tasked to record 
instances of marine mammal observations (both visually or acoustically) 
while also providing additional information of the distance to approach 
(i.e., how close was the sighting/detected marine mammal to the 
activity), the behavior of the animal(s), and any actions determined to 
be necessary to be undertaken, among other requirements. While the 
commenter suggests an independent team be funded to monitor and respond 
to events if they occur, it is unclear what action(s) the commenter 
recommends these individual undertake if a large whale is exposed to 
noise levels that would cause TTS or PTS nor were any suggestions made 
for NMFS to consider for this final rule. To the commenter's other 
suggestion, we note that the MMPA established the Marine Mammal Health 
and Stranding Response Program (MMHSRP), a national program that 
coordinates emergency responses to sick, injured, distressed, or dead 
marine mammals. In the event Ocean Wind discovers a stranded, 
entangled, injured, or dead marine mammal, it must report the 
observation to either the NMFS Greater Atlantic Stranding Hotline or 
the NMFS Southeast Stranding Hotline, depending on exact location, as 
soon as possible but within 24 hours. We reference the commenter to the 
Reporting section of the regulations (217.265(g)) for more information.
    Comment 38: The Commission recommended that NMFS require Ocean Wind 
to submit a PAM plan and to allow for public comments to occur prior to 
the issuance of the final rule. The Commission specified that this plan 
should include the number, type(s) (e.g., moored, towed, drifting, 
autonomous), deployment location(s), bandwidth/sampling rate, 
sensitivity of the hydrophones, estimated detection range(s) for 
ambient conditions and during pile driving, and the detection software 
to be used. They also recommended that Ocean Wind and other wind 
developers consider whether vector sensors should be used in addition 
to deployed hydrophones to enhance detection capabilities, with a 
particular focus on ``those vocalizations that may be drowned out by 
the hammer strikes and resulting reverberation.''
    Response: NMFS notes the Commission's recommendation for Ocean Wind 
to submit a PAM Plan to NMFS for approval is consistent with the 
proposed rule and this final rule. However, for the PAM Plan, this 
final rule requires the lead time for plan submission 180 days prior to 
the start of foundation installation activities. In order to meet the 
Commission's recommendation and the FAST-41 timeline, Ocean Wind would 
have had to submit a plan almost concurrently or shortly after the 
public comment period on the proposed rule which is not logistically 
feasible. Further, NMFS has identified the requirements that Ocean Wind 
must meet in its PAM plan in both the proposed rule, which was made 
available for public comment, and this final rule. Given NMFS' 
extensive expertise with passive acoustic monitoring and the fact that 
we are coordinating with BOEM's Center for Marine Acoustics (CMA), NMFS 
has determined that approval of the plan does not warrant public input. 
However, NMFS will share the plan with the Commission for review prior 
to approval of the plan. NMFS has included the Commission's 
recommendations, among other things, of what would be required in the 
PAM plan.
    Comment 39: The Commission recommended that in the final rule NMFS: 
(1) specify which model-estimated zones (i.e., acoustic ranges, 
exposure ranges, mitigation zones, monitoring zones) and which metrics 
(i.e., flat maximum-over-depth (Rmax), flat model-estimated 
acoustic ranges (R95%)) should be compared to the 
in-situ Level A and B harassment zones, (2) specify which type of in-
situ Level A harassment zone (i.e., acoustic or exposure ranges) should 
be calculated, and, (3) require that in-situ measurements be conducted 
for monopiles that are not represented by the previous three locations 
(i.e., substrate composition, water depth) or by the hammer energies 
and numbers of strikes needed or number of piles installed in a given 
day.
    Response: We have required, in the final rule, that the model-
estimated acoustic ranges (R95%) be compared with 
the real-world sound field measurements as exposure ranges 
(ER95%) cannot be measured in the field. The 
acoustic ranges NMFS incorporated into the final rule are found in

[[Page 62916]]

Appendix H of Ocean Wind's ITA application and use the flat 
R95% metric.
    Regarding the Commission's second suggestions, the in-situ analysis 
for Level A harassment compared to acoustic range which will indicate 
if ERs modeled are acceptable, because if the acoustic range to the 
Level A harassment threshold is louder than acoustic range modeled by 
JASCO, one can assume the ER modeled is too small as animals move 
through a sound field.
    Regarding the Commission's third suggestion, NMFS notes the 
proposed rule included language where if in the case that a monopile 
installation site or construction scenario was determined to be not 
representative of the rest of the monopile installation sites, Ocean 
Wind would be required to provide information on how additional sites 
and construction scenarios would be selected for SFV measurements, as 
would be described in their Foundation Installation Pile Driving SFV 
Plan. This plan would also be required to describe the methodology for 
collecting, analyzing, and preparing SFV measurement data for 
submission to NMFS. We acknowledge that this information is important 
and have carried over the same requirement into the final rule. 
However, we do not agree regarding the suggestion to require additional 
SFV based on variations in the hammer energies, number of strikes used 
for installation, or number of piles installed per day. NMFS applied 
the largest distances modeled, which represents maximum number of piles 
installed per day, maximum strikes predicted, and maximum hammer 
energies. Because of this, Ocean Wind is required to stay within the 
bounds of the analysis. We also note that any variation assuming less 
hammer strikes, less piles installed per day, or lower hammer energies 
would most likely result in less anticipated take per day, as the take 
authorized in the final rule is based on the highest bounds of the 
analysis. For all these reasons, we are not requiring additional SFV 
based on variations specific to the hammer energy, number of piles 
installed, or the total number of strikes.
    Comment 40: The Commission recommended that NMFS require Ocean Wind 
to report on additional metrics not included in the proposed rule, 
including sound pressure level (SPLrms) source levels, 
cumulative SEL, ranges to Level A harassment and Level B harassment 
thresholds, and types and locations of sound attenuation systems. The 
Commission also recommended the ranges to Level B harassment thresholds 
be based on the behavioral thresholds, not TTS thresholds. Lastly, the 
Commission recommended that NMFS require that Ocean Wind deploys a 
minimum of three hydrophones for SFV during impact pile driving and a 
minimum of two hydrophones and one pressure transducer for SFV during 
UXO/MEC detonations.
    Response: NMFS partially concurs with the Commission's 
recommendations. The interim report must now include peak, SPL, and 
SELcum metrics for all hydrophones, estimated distances to 
NMFS Level A harassment and Level B harassment thresholds, types and 
locations of sound attenuation systems. We also removed reference to 
the TTS thresholds. This information is also required in the final 
report. NMFS is not requiring source levels be estimated in interim 
reports given the quick turnaround time (48 hours) and amount of data 
needing to be analyzed in that time. The purpose of the interim reports 
are to determine that distances to Level A harassment and Level B 
harassment thresholds are not being exceeded and to determine if any 
mitigative action needs to be taken. Hence knowing source levels is not 
required at this stage. However, NMFS is requiring source levels (peak, 
SELcum, and SPLrms) be included in the final SFV 
report. Regarding the hydrophones for SFV during pile driving, NMFS is 
requiring Ocean Wind place two hydrophones at four locations at an 
azimuth of least propagation loss and two at 750 m and 90 degrees from 
this azimuth. This results in a total of 10 hydrophones during SFV. 
Additionally, we have added a requirement to deploy a pressure 
transducer for UXO/MEC detonations, as suggested by the Commission.
    Comment 41: Commenters stated that the LOA must include a 
requirement for all phases of the Ocean Wind 1 site characterization to 
subscribe to the highest level of transparency, including frequent 
reporting to Federal agencies, requirements to report all visual and 
acoustic detections of North Atlantic right whales and any dead, 
injured, or entangled marine mammals to NMFS or the U.S. Coast Guard as 
soon as possible and no later than the end of the PSO shift. A 
commenter states that to foster stakeholder relationships and allow 
public engagement and oversight of the permitting, the LOA should 
require all reports and data to be accessible on a publicly available 
website. A commenter also suggested that all quarterly reports of PSO 
sightings must be made publically available to continue to inform 
marine mammal science and protection.
    Response: NMFS notes the commenters' recommendations to report all 
visual and acoustic detections of North Atlantic right whales and any 
dead, injured, or entangled marine mammals to NMFS are consistent with 
the proposed rule and this final rule (see Situational Reporting). We 
refer the reader to 217.265(g)(13)(i)-(vi) of the regulations for more 
information on situational reporting.
    Daily visual and acoustic detections of North Atlantic right whales 
and other large whale species along the Eastern Seaboard, as well as 
Slow Zone locations, are publicly available on WhaleMap (https://whalemap.org/whalemap.html). Further, recent acoustic detections of 
North Atlantic right whales and other large whale species are available 
to the public on NOAA's Passive Acoustic Cetacean Map website (https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map). 
Given the open access to the resources described above, NMFS does not 
concur that public access to quarterly PSO reports is warranted and we 
have not included this measure in the authorization. However, NMFS will 
post all final reports to our website. We reference the commenters to 
217.265(g) for more information on reporting requirements in the 
regulations.
    Comment 42: A commenter recommended that the use of quieter 
foundations be given full consideration when selecting a ``preferred 
alternative'' and that direct-drive turbines be used in lieu of 
gearboxes.
    Response: The commenter refers to a ``preferred alternative'' 
suggests this comment is specific to the EIS BOEM developed for the 
project. NMFS agrees with the commenter that full consideration of 
various turbine foundations should be evaluated in an EIS but also 
recognizes that there are technological challenges and that the 
ultimate foundation type chosen must be practicable. Regardless, this 
rule evaluates the specified activities as described in Ocean Wind's 
MMPA application which includes installation of monopile and jacket 
foundations. With respect to direct-drive, NMFS agrees that the best 
available science indicates that these are known to be less noisy than 
gearboxes and we understand gearboxes are older technology. Ocean Wind 
has confirmed with NMFS that direct drive turbines will be used for the 
Ocean Wind project.

Effects Assessment

    Comment 43: A commenter stated that there is a lack of basic 
research about the impacts of offshore wind energy development on large 
whales. They also asserted that the current application

[[Page 62917]]

does not adequately assess the impact to prey from construction and 
operation and suggest that any permits and authorizations (i.e., any 
IHAs, regulations) for offshore wind development should not be issued 
until scientific baseline assessments for what harms may occur to 
whales are available. Prior to issuing any IHAs or regulations, the 
commenter recommended that an independent pilot project investigating 
the potential and real marine ecosystem impacts, including assessments 
for what harms may or could occur to whales, be conducted and sound 
science supported by planned or currently begun robust scientific 
baseline assessments and independent and peer-reviewed studies are 
complete.
    Response: The MMPA requires NMFS to evaluate the effects of the 
specified activities in consideration of the best scientific evidence 
available and to issue the requested incidental take authorization if 
it makes the necessary findings. The MMPA does not allow NMFS to delay 
issuance of the requested authorization on the presumption that new 
information will become available in the future. If new information 
becomes available in the future, NMFS may modify the mitigation and 
monitoring measures in an LOA issued under these regulations through 
the adaptive management provisions. Furthermore, NMFS is required to 
withdraw or suspend an LOA if, after notice and public comment unless 
an emergency exists, it determines the authorized incidental take may 
be having more than a negligible impact on a species or stock.
    NMFS has duly considered the best scientific evidence available in 
its effects analysis. The Potential Effects of Underwater Sound on 
Marine Mammals section of the proposed rule included a broad overview 
of the potential impacts on marine mammals from anthropogenic noise and 
provided summaries of several studies regarding the impacts of noise 
from several different types of sources (e.g., airguns, Navy sonar, 
vessels) on large whales, including North Atlantic right whales. 
Offshore wind farm construction generates noise that is similar, or, in 
the case of vessel noise, identical, to noise sources included in these 
studies (e.g., impact pile driving and airguns both produce impulsive, 
broadband sounds where the majority of energy is concentrated in low 
frequency ranges), and the breadth of the data from these studies helps 
us predict the impacts from wind activities. In addition, as described 
in the proposed rule, it is general scientific consensus that 
behavioral responses to sound are highly variable and context-specific 
and are impacted by multiple factors including, but not limited to, 
behavioral state, proximity to the source, and the nature and novelty 
of the sound. Overall, the ecological assessments from offshore wind 
farm development in Europe and peer-reviewed literature on the impacts 
of noise on marine mammals both in the U.S. and worldwide provides the 
information necessary to conduct an adequate analysis of the impacts of 
offshore wind construction and operation on marine mammals in the 
Atlantic OCS. NMFS acknowledges that studies in Europe typically focus 
on smaller porpoise and pinniped species, as those are more prevalent 
in the North Sea and other areas where offshore wind farms have been 
constructed, and notes that the commenter did not provide additional 
scientific information for NMFS to consider.
    With respect to adequately assessing impacts to prey from 
construction and operation, NMFS considered the information in Ocean 
Wind's application but greatly expanded on the analysis in the proposed 
rule. Hence, it is not relevant that Ocean Wind's application did not 
fully address potential impacts to prey, as NMFS conducted its own 
analysis for the proposed rule, which is incorporated by reference into 
this final rulemaking, based on the best scientific information 
available. Further, the Biological Opinion provides a robust analysis 
on the impacts on ESA-listed marine mammal prey, many of which (e.g., 
fish, invertebrates) serve as prey for all marine mammals that we have 
summarized in this final rule. NMFS notes that the commenter did not 
provide additional scientific information on impacts on prey for NMFS 
to consider.
    Furthermore, a commenter specifically points out a lack of baseline 
data available on harbor seals in the New Jersey area. NMFS points the 
commenter towards two sources of information for marine mammal baseline 
information: The Ocean/Wind Power Ecological Baseline Studies, January 
2008-December 2009, completed by the New Jersey Department of 
Environmental Protection in July 2010 (https://tethys.pnnl.gov/sites/default/files/publications/Ocean-Wind-Power-Baseline-Volume1.pdf) and 
AMAPPS (https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) 
with annual reports available from 2010 to 2020 that cover the areas 
across the Atlantic Ocean.
    Comment 44: Some commenters questioned whether NMFS met its 
requirement to utilize the best available science in its analysis. A 
commenter stated that NMFS must use the more recent and best available 
science in evaluating impacts to North Atlantic right whales, including 
updated population estimates, recent habitat usage patterns for the 
project area, and a revised discussion of the acute and cumulative 
stress on whales in the region. A commenter identified that the North 
Atlantic right whale population abundance is less than that cited in 
the proposed rule. A commenter stated that NMFS did not use the best 
available science for the proposed rule (NMFS originally used n = 368) 
for the population estimate of North Atlantic right whales when NMFS' 
website stated that ``there are fewer than 350 remaining'' and that the 
North Atlantic right whale Consortium stated that 336 individuals 
remained in their 2021 Annual Report Card. A commenter also objected to 
NMFS' determination that no change was needed in the number of takes in 
the Applicant's request when NMFS acknowledged a revision in the 
density of the North Atlantic right whale population. A commenter then 
cited information about North Atlantic right whale population abundance 
to support this claim.
    Response: The MMPA and its implementing regulations require that 
incidental take regulations be established based on the best available 
information, which does not always mean the most recent information. 
NMFS generally considers the information in the most recent U.S. 
Atlantic and Gulf of Mexico SAR (Hayes et al., 2023) to be the best 
available information for a particular marine mammal stock because of 
the MMPA's rigorous SAR procedural requirements, which includes peer 
review by a statutorily established Scientific Review Group.
    Regarding the comment related to the North Atlantic right whale 
population abundance that was cited in the proposed rule, since 
publication of the proposed rule, NMFS has finalized the 2022 Stock 
Assessment Report indicating the North Atlantic right whale population 
abundance is estimated as 338 individuals (Nest; 95 percent 
confidence interval: 325-350; 88 FR 54592, August 11, 2023). NMFS has 
used this most recent best available scientific information in the 
analysis of this final rule. This new estimate, which is based off the 
analysis from Pace et al. (2017) and subsequent refinements

[[Page 62918]]

found in Pace (2021), is included by reference in the final 2022 SARs 
(https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports) and provides the most recent 
and best available estimate, including improvements to NMFS' right 
whale abundance model. Specifically, Pace (2021) looked at a different 
way of characterizing annual estimates of age-specific survival. The 
results from the Pace (2021) paper that informed the final 2022 SARs 
strengthened the case for a change in mean survival rates after 2010 
through 2011, but did not significantly change other current estimates 
(population size, number of new animals, adult female survival) derived 
from the model. Furthermore, NMFS notes that the SARs are peer reviewed 
by other scientific review groups prior to being finalized and 
published and that the North Atlantic Right Whale Report Card (Pettis 
et al., 2022) does not undertake this process. Based on this, NMFS has 
considered all relevant information regarding North Atlantic right 
whale, including the information cited by the commenters. However, NMFS 
has relied on the final 2022 SAR in this final rule as it reflects the 
best available scientific information.
    We note that this change in abundance estimate does not change the 
estimated take of North Atlantic right whales or authorized take 
numbers, nor affect our ability to make the required findings under the 
MMPA for Ocean Wind's construction activities.
    Comment 45: Commenters raised concerns regarding the cumulative 
impacts of the multiple offshore wind projects being developed 
throughout the range of North Atlantic right (which they state as from 
North Carolina to Maine), and specifically recommended that we 
carefully consider the take from all of these projects in combination 
when conducting the negligible impact analysis for Ocean Wind. 
Relatedly, they emphasized the total take of bottlenose dolphins by 
Ocean Wind across multiple years, especially in combination with 
multiple projects. Commenters also objected to NMFS's conclusion that 
the application's take limit of 14 North Atlantic right whales for 
construction activities in the coastal waters between off New Jersey 
and New York will have a ``negligible impact'' on the species, 
especially in light of the North Atlantic right whale's critically 
endangered status, the ongoing Unusual Mortality Event that this 
species is experiencing and, consequently, the asserted existential 
threat posed to the species by obstacles to even one individual's 
survival--and they emphasize this comment in combination with the need 
to consider the take from multiple projects.
    Response: NMFS is required to authorize the requested incidental 
take if it finds the total incidental take of small numbers of marine 
mammals by U.S. citizens ``while engaging in that (specified) 
activity'' within a specified geographic region during the five-year 
period (or less) will have a negligible impact on such species or stock 
and where appropriate, will not have an unmitigable adverse impact on 
the availability of such species or stock for subsistence uses (16 
U.S.C. 1371(a)(5)(A)). Negligible impact is defined as ``an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effect on annual rates of recruitment or 
survival'' (50 CFR 216.103). Neither the MMPA nor its implementing 
regulations require consideration of unrelated activities and their 
impacts on marine mammal populations in the negligible impact 
determination. Additionally, NMFS' implementing regulations require 
applicants to include in their request a detailed description of the 
specified activity or class of activities that can be expected to 
result in incidental taking of marine mammals (50 CFR 216.104(a)(1)). 
Thus, the ``specified activity'' for which incidental take coverage is 
being sought under section 101(a)(5)(A) is generally defined and 
described by the applicant. Here, Ocean Wind is the applicant, and we 
analyzed the impact of its specified activity described in its 
application and made the necessary determinations on that basis.
    Consistent with the preamble of NMFS' implementing regulations (54 
FR 40338, September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are factored into the baseline, which is used 
in the negligible impact analysis. Here, NMFS has factored into its 
negligible impact analysis the impacts of other past and ongoing 
anthropogenic activities via their impacts on the baseline (e.g., as 
reflected in the density/distribution and status of the species, 
population size and growth rate, and other relevant stressors).
    The preamble of NMFS' implementing regulations also addresses 
cumulative effects from future, unrelated activities. Such effects are 
not considered in making negligible impact determination under section 
101(a)(5) of the MMPA. Rather, NMFS considers: (1) cumulative effects 
that are reasonably foreseeable when preparing a National Environmental 
Policy Act (NEPA) analysis, and (2) reasonably foreseeable cumulative 
effects under section 7 of the ESA for ESA-listed species, as 
appropriate. Accordingly, NMFS has adopted BOEM's Environmental Impact 
Statement (EIS) and reviewed by NMFS as part of its inter-agency 
coordination. This EIS addresses cumulative impacts related to the 
Project and substantially similar activities in similar locations. 
Cumulative impacts regarding the promulgation of the regulations and 
issuance of a LOA for construction activities, such as those planned by 
Ocean Wind, have been adequately addressed under NEPA in the adopted 
EIS that supports NMFS' determination that this action has been 
appropriately analyzed under NEPA. Separately, the cumulative effects 
of the Project on ESA-listed species, including the North Atlantic 
right whale, was analyzed under section 7 of the ESA when NMFS engaged 
in formal inter-agency consultation with the NOAA Greater Atlantic 
Regional Fisheries Office (GARFO). The Biological Opinion for the 
Project determined that NMFS' promulgation of the rulemaking and 
issuance of a LOA for construction activities associated with leasing, 
individually and cumulatively, are likely to adversely affect, but not 
jeopardize, listed marine mammals.
    NMFS disagrees that the authorized take of 14 North Atlantic right 
whales by Level B harassment incidental to the Project will have a non-
negligible impact on the species and notes that the commenter did not 
provide additional scientific information for NMFS to consider to 
support this claim. No take by injury, serious injury, or mortality is 
authorized. NMFS emphasizes that the authorized incidental take is 
limited to Level B harassment (i.e., behavioral disturbance). As 
described in the proposed rule and this final rule (see Negligible 
Impact Analysis and Determination section), NMFS has determined that 
the Level B harassment of North Atlantic right will not result in 
impacts to the population through effects on annual rates or 
recruitment or survival. The project area occurs offshore of New 
Jersey, which does not include habitat where North Atlantic right 
whales are known to concentrate in foraging or reproductive behaviors. 
The project area is a known migratory corridor. Hence, it is likely 
that most of the authorized takes represent an exposure to a different 
individual, which means that the behavioral impacts to North Atlantic 
right whales are limited to behavioral disturbance occurring on 1 or 2 
days within a year--

[[Page 62919]]

an amount that would not be expected to impact reproduction or 
survival. Across all years, while it is possible an animal migrating 
through could have been exposed during a previous year, the low amount 
of take authorized during the 5-year period (n=14) of the rule makes 
this scenario unlikely. 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 but not abandonment of 
its migratory path. Slight displacement (but not abandonment) of a 
migratory pathway is unlikely to result in energetic consequences that 
could affect reproduction or survival of any individuals. Other impacts 
such as masking, TTS, and temporary communication and foraging 
disruption may occur (again noting that North Atlantic right whales 
concentrate foraging far north of the project area (e.g., southern New 
England, Gulf of Maine, and Canada)); however, these impacts would also 
be temporary and unlikely to lead to survival or reproduction impacts 
of any individual, especially when the extensive suite of mitigation, 
including numerous measures targeted specifically towards minimizing 
impacts to North Atlantic right whales, are considered.
    Comment 46: Commenters asserted that: (1) NMFS' reliance on the 
160-dB (1 micropascal squared seconds (re 1 [micro]Pa\2\s)) threshold 
for behavioral harassment is not supported by the best available 
scientific information and grossly underestimates takes by Level B 
harassment; and (2) the monitoring protocols prescribed for the 
clearance zones are under-protective.
    Response: Regarding the appropriateness of the 160-dB behavioral 
harassment threshold, NMFS notes that the potential for behavioral 
response to an anthropogenic source is highly variable and context-
specific and acknowledges the potential for Level B harassment at 
exposures to received levels below 160 dB rms. Alternatively, NMFS 
acknowledges the potential that not every animal exposed to received 
levels above 160 dB rms will respond in ways constituting behavioral 
harassment. There are a variety of studies indicating that contextual 
variables play a very important role in response to anthropogenic 
noise, and the severity of effects are not necessarily linear when 
compared to a received level (RL). Several studies (e.g., Nowacek et 
al., 2004; Kastelein et al., 2012 and 2015) showed there were 
behavioral responses to sources below the 160-dB threshold, but also 
acknowledged the importance of context in these responses. For example, 
Nowacek et al. (2004) reported the behavior of five out of six North 
Atlantic right whales was disrupted at RLs of only 133-148 dB re 1 
[micro]Pa (returning to normal behavior within minutes) when exposed to 
an alert signal. However, the authors also reported that none of the 
whales responded to noise from transiting vessels or playbacks of ship 
noise even though the RLs were at least as strong, and contained 
similar frequencies, to those of the alert signal. The authors state 
that a possible explanation for whales responding to the alert signal 
and not responding to vessel noise is due to the whales having been 
habituated to vessel noise, while the alert signal was a novel sound. 
In addition, the authors noted differences between the characteristics 
of the vessel noise and alert signal which may also have played a part 
in the differences in responses to the two noise types. Therefore, it 
was concluded that the signal itself, as opposed to the RL, was 
responsible for the response. DeRuiter et al. (2012) also 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. Finally, 
Gong et al. (2014) highlighted that behavioral responses depend on many 
contextual factors, including range to source, RL above background 
noise, novelty of the signal, and differences in behavioral state. 
Similarly, Kastelein et al. (2015) examined behavioral responses of a 
harbor porpoise to sonar signals in a quiet pool, but stated behavioral 
responses of harbor porpoises at sea would vary with context such as 
social situation, sound propagation, and background noise levels.
    NMFS uses 160 dB (rms) as the exposure level for estimating Level B 
harassment takes and is currently considered the best available 
science, while acknowledging that the 160-dB rms step-function approach 
is a simplistic approach. However, there appears to be a misconception 
regarding the concept of the 160-dB threshold. While it is correct that 
in practice it works as a step-function, i.e., animals exposed to 
received levels above the threshold are considered to be ``taken'' and 
those exposed to levels below the threshold are not, it is in fact 
intended as a sort of mid-point of likely behavioral responses (which 
are extremely complex depending on many factors including species, 
noise source, individual experience, and behavioral context). What this 
means is that, conceptually, the function recognizes that some animals 
exposed to levels below the threshold will in fact react in ways that 
appropriately considered take, while others that are exposed to levels 
above the threshold will not. Use of the 160-dB threshold allows for a 
simplistic quantitative estimate of take, while we can qualitatively 
address the variation in responses across different received levels in 
our discussion and analysis.
    Overall, we reiterate the lack of scientific consensus regarding 
appropriate criteria. Defining sound levels that disrupt behavioral 
patterns is difficult because responses depend on the context in which 
the animal receives the sound, including an animal's behavioral mode 
when it hears sounds (e.g., feeding, resting, or migrating), prior 
experience, and biological factors (e.g., age and sex). Other 
contextual factors, such as signal characteristics, distance from the 
source, and signal to noise ratio, may also help determine response to 
a given received level of sound. Therefore, levels at which responses 
occur are not necessarily consistent and can be difficult to predict 
(Southall et al., 2007; Ellison et al., 2012; Southall et al., 2021).
    There is currently no concurrence on these complex issues, and NMFS 
followed its practice at the time of submission and review of this 
application in assessing the likelihood of disruption of behavioral 
patterns by using the 160-dB threshold. This threshold has remained in 
use in part because of the practical need to use a relatively simple 
threshold based on available information that is both predictable and 
measurable for most activities. We note that the seminal reviews 
presented by Southall et al. (2007), Gomez et al. (2016), and Southall 
et al. (2021) did not suggest any specific new criteria due to lack of 
convergence in the data. NMFS is currently evaluating available 
information towards development of updated guidance for assessing the 
effects of anthropogenic sound on marine mammal behavior. However, 
undertaking a process to derive defensible exposure-response 
relationships is complex. A recent systematic review by Gomez et al. 
(2016) was unable to derive criteria expressing these types of 
exposure-response relationships based on currently available data.
    NMFS acknowledges that there may be methods of assessing likely 
behavioral responses to acoustic stimuli that better capture the 
variation and context-dependency of those responses than the simple 160 
dB step-function used here; there is no agreement on what that method 
should be or how

[[Page 62920]]

more complicated methods may be implemented by applicants. NMFS is 
committed to continuing its work in developing updated guidance with 
regard to acoustic thresholds, but pending additional consideration and 
process is reliant upon an established threshold that is reasonably 
reflective of available science. We also note the commenters did not 
provide additional information for NMFS to consider to support their 
claim that the 160 dB behavioral harassment threshold is not the best 
available scientific information.
    Regarding the assertion that monitoring protocols prescribed for 
the clearance and shutdown zones (called ``exclusion zones'' in the 
comment letter) are under-protective, please refer to Comments 12, 14, 
15, 16, and 18.
    Comment 47: In general, a commenter expressed concern that noise 
pollution from offshore wind activities would interfere with North 
Atlantic right whale's social communication and prey detection. They 
are concerned with the low-frequency noise from large vessels involved 
in the construction activities overlapping North Atlantic right whale 
communication.
    Response: As discussed in the Negligible Impact Analysis and 
Determination section (specifically the Auditory Masking or 
Communication Impairment sections) of both the proposed and final rule, 
the level of masking that could occur from Ocean Wind's activities will 
have a negligible impact on marine mammals, including North Atlantic 
right whales. Inherent in the concept of masking is the fact that the 
potential for the effect is only present during the times that the 
animal and the sound source are in close enough proximity for the 
effect to occur (and further this time period would need to coincide 
with a time that the animal was utilizing sounds at the masked 
frequency) and, as our analysis (both quantitative and qualitative 
components) indicates, because of the relative movement of whales and 
vessels, as well as the stationary nature of a majority of the 
activities, we do not expect these exposures with the potential for 
masking to be of a long duration within a given day. Further, because 
of the relatively low density of mysticetes during months where most of 
Ocean Wind's activities would be occurring (May through November in 
most cases), and relatively large area over which the vessels will 
travel and where the activities will occur, we do not expect any 
individual North Atlantic right whales to be exposed to potentially 
masking levels from these surveys for more than a few days in a year. 
Furthermore, as many of the activities are occurring in clusters and 
specific areas rather than sporadically dispersed in the project area 
(i.e., foundation installation all occurs in the same general area, 
nearshore cable installation activities occur in relatively similar and 
nearby areas), animals are likely to temporarily avoid these locations 
during periods where activities are occurring but are expected to 
return once activities have ceased.
    As noted above, any masking effects of Ocean Wind's activities are 
expected to be limited in duration, if present. For HRG surveys, given 
the likelihood of significantly reduced received levels beyond short 
distances from the transiting survey vessel, the short duration of 
potential exposure, the lower likelihood of extensive additional 
contributors to background noise offshore and within these short 
exposure periods, and the fact that the frequency of HRG signals are 
primarily above those used in social communication or for detection of 
other important clues, we believe that the incremental addition of the 
survey vessel is unlikely to result in more than minor and short-term 
masking effects. Masking is not a concern for UXO/MEC detonations, 
given the instantaneous nature of the signal. For pile driving, and 
especially foundation installation, masking effects are more likely 
given the larger zones and longer durations, and animals that approach 
the source could experience temporary masking of some lower frequency 
cues. However, any such effects would be localized to the areas around 
these stationary activities, which means that whales transiting through 
the area could adjust their transit away from the construction location 
and return once the activity has completed. For the activity as a 
whole, any masking that might potentially occur would be expected to 
likely be incurred by the same animals predicted to be exposed above 
the behavioral harassment threshold, and thereby accounted for in the 
Level B harassment numbers. NMFS notes that the commenter did not 
provide additional scientific information for NMFS to consider to 
support its concern.
    Comment 48: A commenter was concerned that limiting construction to 
occur during summer and fall months (due to the seasonal moratorium for 
foundation installation), construction activities would be concentrated 
into months where other marine mammal species (i.e., dolphins and 
whales) are using the region for foraging, birthing, nursing, 
migrating, etc. A commenter recommended that NMFS fully account for the 
consequences of any other proposed North Atlantic right whale seasonal 
restriction on other protected species and evaluate alternative risk 
reduction strategies that would protect multiple species.
    Response: In order to promulgate a rulemaking under section 
101(a)(5)(A) of the MMPA, NMFS must set forth, among other 
requirements, means of effecting the least practicable adverse impact 
on affected species or stock and its habitat. In the proposed rule and 
in this final rule, NMFS has determined the mitigation measures will 
effect the least practicable adverse impact on all of the affected 
species or stocks and their habitat. NMFS acknowledges that the 
seasonal restriction for impact pile driving is to effect the least 
practicable adverse impact on North Atlantic right whales; however, 
NMFS notes that this seasonal restriction provides additional 
protections to many other large whale species that tend to concentrate 
off of New Jersey during winter months. For example, humpback whales 
are located in higher numbers nearshore in the project area from 
October through February, with a clear offshore shift starting in March 
(Roberts et al., 2023). Harbor porpoises, as another example, are also 
likely to be more present when foundation installation and UXO/MEC 
detonation would not be occurring. As described in this final rule, 
there is no habitat of significance in the specified geographic region 
other than the seasonal migratory BIA for North Atlantic right whales.
    Comment 49: A commenter stated that some of the specified 
activities will increase the number of vessels in the ocean in the 
project area, which will lead to an increased threat of harm by vessel 
strikes to marine mammals, specifically North Atlantic right whales.
    Response: NMFS acknowledges that vessel strikes can result in 
injury or mortality of marine mammals. We analyzed the potential for 
vessel strike resulting from Ocean Wind's activities and determined 
that based on the nature of the activity and the required mitigation 
measures specific to vessel strike avoidance included in this 
rulemaking, the potential for vessel strike is so low as to be 
discountable. The required mitigation measures, all of which were 
included in the proposed rulemaking and are now required in the final 
regulations, include: a requirement that all vessel operators comply 
with 10 kn (18.5 km/hour) or less speed restrictions in any SMA, DMA, 
or Slow Zone while underway, and check daily for information regarding 
the establishment of mandatory or voluntary vessel strike avoidance 
areas (SMAs, DMAs, Slow Zones) and information regarding North Atlantic

[[Page 62921]]

right whale sighting locations; a requirement that all vessels, 
regardless of size, operating from November 1 through April 30 operate 
at speeds of 10 kn (18.5 km/hour) or less; a requirement that all 
vessel operators reduce vessel speed to 10 kn (18.5 km/hour) or less 
when any large whale, any mother/calf pairs, pods, or large assemblages 
of non-delphinid cetaceans are observed near the vessel; a requirement 
that all project vessels maintain a separation distance of 500 m or 
greater from North Atlantic right whales; a requirement that, if 
underway, vessels must steer a course away from any sighted North 
Atlantic right whale at 10 kn or less until the 500-m minimum 
separation distance has been established; a requirement that, if a 
North Atlantic right whale is sighted in a vessel's path, or within 500 
m of an underway vessel, the underway vessel must reduce speed and 
shift the engine to neutral; and, a requirement that all vessels 
underway must maintain a minimum separation distance of 100 m or 50 m 
from all other marine mammals (species-dependent and excluding North 
Atlantic right whales), with an understanding that at times this may 
not be possible (e.g., for animals that approach the vessel). Based on 
these, we have determined that the vessel strike avoidance measures in 
the rulemaking are sufficient to ensure the least practicable adverse 
impact on species or stocks and their habitat.
    Separately, NMFS notes that the commenter's comment appears to 
conflate vessel strike risks and impacts to marine mammals due to noise 
from construction vessels.
    Comment 50: A commenter stated that the vessel strike avoidance 
measures in the proposed rule are insufficient and clearly are directed 
at vessels specifically engaging in the construction activities for the 
applicant. They stated that the application never accounted for vessel 
strikes from non-project-related vessels if North Atlantic right whales 
are displaced outside of the project area.
    Response: Under the MMPA, NMFS must prescribe regulations setting 
forth other means of effecting the least practicable adverse impact of 
the requestor's specified activities on species or stocks and its 
habitat. NMFS cannot require non-project related vessels to implement 
mitigation through this rulemaking. NMFS acknowledges that North 
Atlantic right whales may temporarily avoid the area where the 
specified activities occur. However, NMFS does not anticipate that 
North Atlantic right whales will be permanently displaced or displaced 
for extended periods, and the commenter does not provide evidence that 
this effect should be a reasonably anticipated outcome of the specified 
activity.
    Furthermore, as described in the Biological Opinion issued by GARFO 
on April 3, 2023, NMFS does not expect that ESA-listed whales would 
experience a higher risk of vessel strike due to avoidance of pile 
driving. Any whale that would be exposed to vibratory pile driving 
noise from landfall activities (i.e., temporary cofferdams, temporary 
goal posts) would already be located in the part of the Wind 
Development Area with the heaviest amount of vessel traffic due to the 
nearshore coastal transit routes used by vessels that would move north 
and south along the coast and from vessels moving from port-to-port. 
Similarly, if pile-driving noise causes the whale to move further 
offshore, given the concentration of nearshore vessel activity, we 
expect that the whale would actually experience lower levels of vessel 
traffic. During impact pile driving we expect that any whales disturbed 
would only need to shift their position between 1.72-3.35 km to avoid 
pile-driving noise above the threshold for Level B harassment. This 
temporary avoidance/displacement would still mean that the whale is far 
from the heaviest vessel traffic routes, which are located 
approximately 10 nautical miles (nmi; 18.5 km) away from the Lease 
Area.
    NMFS takes the risk of vessel strike seriously and has prescribed 
measures sufficient to avoid the potential for vessel strike to the 
extent practicable. NMFS has required these measures despite a very low 
likelihood of vessel strike; vessels associated with the construction 
activities will add a discountable amount of vessel traffic to the 
specific geographic region and furthermore, vessels towing survey gear 
travel at very slow speeds (e.g., roughly 4-5 kn (7.4-9.3 km/hour)) and 
any vessels engaged in construction activities would be primarily 
stationary during the pile-driving event.

Other

    Comment 51: Commenters encouraged NMFS to issue LOAs on an annual 
basis, rather than a single 5-year LOA, to allow for the continuous 
incorporation of the best available scientific and commercial 
information and to modify mitigation and monitoring measures as 
necessary and in a timely manner. Commenters also stated that due to 
the precarious nature of the North Atlantic right whale, this annual 
approach is necessary to implement flexible protections.
    Response: While NMFS understands the reasoning behind the 
commenters' suggestion, we do not think this is necessary as: (1) the 
final rule includes requirements for annual reports (in addition to 
weekly and monthly requirements) to support frequent evaluation of the 
activities and monitoring results; and (2) the final rule includes an 
Adaptive Management provision that allows NMFS to make modifications 
and adjustments to the measures found in the issued LOA if and when new 
information that supports necessary modifications becomes available. 
Because of this, NMFS will issue a single 5-year LOA and modify it, if 
and when necessary, at any point during the lifetime of the 
regulations.
    Comment 52: The Commission recommended that NMFS rectify the 
following omissions and errors in the final rule: (1) Section 
217.260(c)(2) should also specify ``removal'' of cofferdams; (2) 
Section 217.264(a)(4) omitted ``UXO/MEC detonations'' in the list of 
specified activities; (3) The duration that PSOs must monitor the area 
around each foundation pile (monopiles or pin piles) after pile driving 
has stopped should be specified as 30 minutes in section 217.264(d)(4) 
or (d)(5), as noted in the preamble to the proposed rule; (4) The terms 
``small odontocetes'', ``delphinids and harbor porpoises'', and 
``dolphins and porpoises'' were used interchangeably throughout the 
various mitigation measures in section 217.264; and (5) The terms 
``seals'' and ``pinnipeds'' were used interchangeably or omitted 
altogether from the various mitigation measures in section 217.264.
    Response: We appreciate the Commission's specific suggestions. We 
have rectified the first three concerns described in the Commission's 
list. We have not made adjustments with respect to the final two 
suggestions as the intermixed use of ``seals'' versus ``pinnipeds'' and 
``small odontocetes'', ``delphinids and harbor porpoises'', and 
``dolphins and porpoises'' are clearly describing the species at hand. 
Furthermore, this variation in language does not affect the clarity or 
understanding of the final rule or its provisions.
    Comment 53: A commenter recommended that NMFS deny and rescind all 
ITAs for offshore wind construction, including this authorization to 
Ocean Wind, until the Draft North Atlantic Right Whale and Offshore 
Wind Strategy (Draft Strategy) is finalized. Referencing the low 
Potential Biological Removal (PBR) for North Atlantic right whales, the

[[Page 62922]]

commenter also stated that all industrial full-scale construction for 
offshore wind energy should be paused until the Federal agencies 
determine how best to eliminate or avoid all impacts, Level A 
harassment, and Level B harassment on the North Atlantic right whale.
    Response: As identified by a commenter, in October 2022, NMFS and 
BOEM released a draft joint strategy to protect and promote the 
recovery of North Atlantic right whales while responsibly developing 
offshore wind energy. The draft strategy identifies three main goals: 
(1) mitigation and decision-support tools; (2) research and monitoring; 
and (3) collaboration, communication and outreach. It focuses on 
improving the body of science and integrating past, present and future 
efforts related to North Atlantic right whales and offshore wind 
development.
    NMFS is required to authorize the requested incidental take if it 
finds the total incidental take of small numbers of marine mammals by 
U.S. citizens while engaging in a specified activity within a specified 
geographic region during a five-year period (or less) will have a 
negligible impact on such species or stock and where appropriate, will 
not have an unmitigable adverse impact on the availability of such 
species or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)). While 
the incidental take authorization must be based on the best scientific 
information available, the MMPA does not allow NMFS to delay issuance 
of the requested authorization on the presumption that new information 
will become available in the future. NMFS has made the required 
findings, based on the best scientific information available and has 
included mitigation measures to effect the least practicable adverse 
impacts on North Atlantic right whales. Many of these mitigation 
measures are found in the Draft Strategy, as appropriate, for 
construction activities. While NMFS continues to work together with 
BOEM towards the goals identified in the Strategy, finalizing the 
Strategy (or similar efforts) or completing specific goals identified 
in the strategy are not a prerequisite for the issuance of an ITA.
    While NMFS agrees that the North Atlantic right whale population 
abundance is alarmingly low (with entanglement in fishing gear and 
vessel strikes being the leading causes of North Atlantic right whale 
mortality), NMFS disagrees that the type of harassment authorized in 
this rulemaking will have a non-negligible impact (i.e., adversely 
affect the species through effects on annual rates of recruitment or 
survival). NMFS emphasizes that no mortality, serious injury, or Level 
A harassment is anticipated or authorized for North Atlantic right 
whales from Ocean Wind's specified activities. Further, the impacts of 
Level B harassment (i.e., behavioral disturbance) are expected to have 
a negligible impact on the North Atlantic right whale population. The 
magnitude of behavioral harassment authorized is very low and the 
severity of any behavioral responses is expected to be primarily 
limited to temporary displacement and avoidance of the area when some 
activities that have the potential to result in harassment are 
occurring (see the Negligible Impact Analysis and Determination section 
for our full analysis). No impacts to the reproductive success or 
survival of any individual North Atlantic right whales are expected to 
result from these disturbances and as such, no impacts to the 
population are expected to result. In its comment, the commenter 
conflates PBR level and Level B harassment and suggests that Level B 
harassment can have population level impacts. The PBR level is defined 
as the maximum number of animals, not including natural mortalities, 
that may be removed from a stock while allowing that stock to reach or 
maintain its optimum sustainable population (16 U.S.C. 1362(20)). Thus, 
PBR is only germane in the discussion of ``removals'' of individual 
North Atlantic right whales from the population and, therefore, PBR is 
not applicable in this discussion since no impact to reproduction or 
survival of any individuals is anticipated or authorized. Further, the 
commenter did not suggest mitigation measures to eliminate and avoid 
all impacts to North Atlantic right whales for NMFS to evaluate or 
consider.
    NMFS notes that BOEM is the lead agency permitting the construction 
of offshore wind farms. NMFS' action authorizes take of marine mammals 
incidental to BOEM's permitted action (i.e., offshore wind farm 
construction). Hence, the commenter's request is more relevant to 
BOEM's permitting authority. The commenter's comments regarding other 
offshore wind construction activities are outside the scope of this 
authorization.
    Comment 54: A commenter questioned NMFS ability to consider an 
application wherein the applicant has not finalized design plans at the 
time of the proposed rule stage.
    Response: NMFS acknowledges that at the time when the proposed rule 
was published in the Federal Register, Ocean Wind had not yet finalized 
its construction plan for the full buildout of permanent WTG and OSS 
foundations. Hence, NMFS conservatively carried forward the buildout 
scenario estimated to have the greater number of takes into the total 
estimated take analysis and small numbers and negligible impact 
determination. There is no requirement in the MMPA that all project 
design plans must be finalized prior to NMFS evaluating an ITA request. 
NMFS further notes that these large-scale construction projects require 
flexibility throughout the permitting process as supply lines are 
established, contractors are hired, and communications with other 
Federal and state agencies occur. In its comment, the commenter implies 
that the applicant had not ``disclosed the activity'' in its entirety, 
which is not accurate. Ocean Wind presented an analysis for two 
potential buildout scenarios assuming either a full monopile foundation 
buildout or a dual monopile-jacket foundation buildout.
    Comment 55: A commenter expressed concern for the accountability, 
fairness, and transparency regarding how and who will determine which 
vessel struck a North Atlantic right whale or any other marine mammal 
species, if it occurs.
    Response: NMFS directs the commenter to language found in both the 
proposed and final rules regarding reporting in the event of a vessel 
strike by one of Ocean Wind's project vessels. This reporting 
requirement necessitates that the strike be reported to NMFS Office of 
Protected Resources and GARFO within and no later than 24 hours from 
the time of the strike occurred. In the event of a strike, all 
construction activities are required to cease until NMFS Office of 
Protected Resources is able to review the circumstances of the strike 
and determine if any additional measures are necessary to ensure LOA 
compliance. Ocean Wind must also provide a report including provisions 
such as, but not limited to: the time, date, and location of the 
strike; the species struck; the vessel speed at the time of the strike; 
the vessels course and heading; what operations the vessel was engaged 
in; information regarding what vessel strike reduction measures were in 
effect to avoid a strike; information on the behavior of the animal 
struck; the fate of the animal; as well as photographs and/or video, as 
practicable. Given the precarious nature of the North Atlantic right 
whale, as indicated in the commenter's comment, NMFS has also required 
a suite of vessel strike avoidance measures that are described both in 
other comments and within this final rule.
    It is not clear what the commenter means by ``fairness'' in 
determining how or which vessel struck a North Atlantic right whale or 
other species if it occurs,

[[Page 62923]]

nor has the commenter provided specific suggestions for NMFS to 
evaluate as means by which to conduct the actions they suggest. Ocean 
Wind is the responsible party for activities specifically pertaining to 
their action (i.e., the construction of the Project). Any strike would 
be unlawful. In the unforeseen circumstance that a vessel strike does 
occur, the relevant authorities (i.e., NMFS, BOEM, the Bureau of Safety 
and Environmental Enforcement (BSEE)) will investigate and take 
appropriate action.

Changes From the Proposed to Final Rule

    Since the publication of the proposed rule in the Federal Register 
(87 FR 64868, October 26, 2022), NMFS has made changes, where 
appropriate, that are reflected in the final regulatory text and 
preamble text of this final rule. These changes are briefly identified 
below, with more information included in the indicated sections of the 
preamble to this final rule.

Changes in Information Provided in the Preamble

    The information found in the preamble of the Proposed Rule was 
based on the best available information at the time of publication. 
Since publication of the Proposed Rule, new information has become 
available, which has been incorporated into this final rule as 
discussed below.
    The following changes are reflected in the Description of Marine 
Mammals in the Geographic Region section of the preamble to this final 
rule:
    Given the release of NMFS' final 2022 SARs (Hayes et al., 2023), we 
have updated the population estimate for the North Atlantic right whale 
(Eubalaena glacialis) from 368 to 338 and the total mortality/serious 
injury (M/SI) amount from 8.1 to 31.2. This increase is due to the 
inclusion of undetected annual M/SI in the total annual serious injury/
mortality.
    Given the availability of new information, we have made updates to 
the UME summaries for multiple species.
    The following changes are reflected in the Estimated Take section 
of the preamble to this final rule:
    We have increased the amount of take authorized for humpback 
whales, by Level A harassment, from 1 to 2 (based on a single group 
size from the Atlantic Marine Assessment Program for Protected Species 
(AMAPPS) dataset) and the amount of take authorized, by Level B 
harassment, from 4 to 46, based on a recommendation by the Marine 
Mammal Commission to consider a previous Ocean Wind monitoring report 
(2021-2022) for activities offshore of New Jersey.
    Based on a recommendation by the Marine Mammal Commission, NMFS has 
allocated takes by Level B harassment to the coastal stock of 
bottlenose dolphins (n = 94), which is 10 percent of the total takes 
for the offshore stock of bottlenose dolphins from foundation 
installation activities. This reduces the authorized take for the 
offshore stock to 90 percent of its original proposed value (n = 842).
    Based on Ocean Wind replacing three cofferdams with goal posts, the 
take for several species (i.e., fin whales (Balaenoptera physalus), 
minke whale (Balaenoptera acutorostrata), humpback whale (Megaptera 
novaeangliae), both stocks of bottlenose dolphins (Tursiops truncatus), 
common dolphins (Delphinus delphis), harbor porpoises (Phocoena 
phocoena), gray seals (Halichoerus grypus), and harbor seals (Phoca 
vitulina)) decreased slightly compared to what was originally proposed.
    Based on a recommendation by the Marine Mammal Commission, we have 
increased the amount of take by Level B harassment of common dolphins 
and Atlantic white-sided dolphins (Lagenorhynchus acutus) from 
vibratory pile installation and removal associated with cable landfall 
construction from 10 to 30 and 5 to 12, respectively, based on a single 
group size each from the AMAPPS dataset.
    Based on a recommendation by the Marine Mammal Commission, we have 
added additional take from UXO/MEC detonations, by Level A harassment, 
for minke whales (n = 1) and both stocks of bottlenose dolphins (n = 11 
per stock), assuming a single group size each using information 
provided by Ocean Wind.
    NMFS has corrected a mathematical error for sperm whales where the 
value presented in Table 33 was incorrectly labeled as six rather than 
nine during Year 2.

Changes in the Regulatory Text

    We have made the following changes to the regulatory text, which 
are reflected, as appropriate, throughout this final rule and 
described, as appropriate, in the preamble.
    For clarity and consistency, we revised two paragraphs in Sec.  
217.260 Specified activity and specified geographical region of the 
regulatory text to fully describe the specified activity and specified 
geographical region.
    In Sec.  217.261 Effective Dates, NMFS has changed the effective 
date from August 1, 2023 through July 31, 2028 to October 13, 2023 
through October 12, 2028. The associated SUMMARY and DATES sections of 
this final rule reflect this change.
    The following change is reflected in Sec.  217.262 Permissible 
Methods of Taking: adding vibratory pile driving of goal post to the 
list of permissible methods of taking by Level B harassment.
    The following changes are reflected in the Description of the 
Specified Activities section of the preamble to this final rule:
    Ocean Wind has modified their vibratory pile driving activities 
from vibratory pile driving seven temporary cofferdams to vibratory 
pile driving four temporary cofferdams (Barnegat Bay landfall 
locations) and three temporary goal posts (two at Island Beach State 
Park, one at BL England). The modification from goal posts to 
cofferdams at three nearshore locations neither changes the nature of 
the specified activity (i.e., vibratory pile driving), nor the 
potential impacts to marine mammals associated with the specified 
activity. This modification reduces the total amount of vibratory 
driving time to complete all cable landfall construction work (by 
approximately 90 hours total (30 hours at each of three sites)).
    The following changes are reflected in Sec.  217.264 Mitigation 
Requirements and the associated Mitigation section of the preamble to 
this final rule:
    Based on a recommendation by a commenter, NMFS has added a 
requirement that all project vessels must utilize AIS.
    This final rule indicates that Ocean Wind is required to construct 
the project as expeditiously as possible to avoid foundation 
installation in December and that NMFS must approve foundation pile 
driving in December in consideration of the data available should Ocean 
Wind request to drive piles in December.
    At the time of the proposed rule, NMFS had not approved nighttime 
pile driving as Ocean Wind had yet to prove the efficacy of their 
monitoring approaches during hours of darkness. However, given 
additional information provided by Ocean Wind, these final regulations 
allow Ocean Wind to initiate impact pile driving during hours of 
darkness only from June 1 to October 31, annually, in accordance with 
their Alternative Monitoring Plan (when approved, will be available on 
NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility).

[[Page 62924]]

    NMFS has increased the size of the winter impact pile driving 
clearance zones for large whales (2,500 m to 3,000 m) and harbor 
porpoises (1,450 m to 1,750 m) and has removed the PAM clearance zone 
and PAM shutdown zone for North Atlantic right whales and added a 
single PAM monitoring zone (10 km) for all species (see Table 36) for 
clarity and to be consistent with the regulatory text in the proposed 
rule and in this final rule. Additionally, NMFS has clarified that the 
shutdown and clearance zones in Table 36 apply to both visual and 
auditory detections.
    NMFS has added a requirement for a 10-m (32.8-ft) shutdown zone for 
all other in-water activities that are not expected to cause take of 
marine mammals (e.g., trenching, dredging), which may be monitored by 
any individual on watch (approved PSO not specifically required).
    NMFS has included mitigation and monitoring zones specific to the 
different UXO/MEC charge weights, rather than a single zone size 
assuming only the largest charge weight, as Orsted has since provided 
evidence to NMFS that they can reliably identify UXO/MEC charge weights 
in the field.
    The following changes are reflected in Sec.  217.265 Monitoring and 
Reporting Requirements and the associated Monitoring and Reporting 
section of the preamble of this final rule:
    We have updated the process for obtaining NMFS approval for PSO and 
PAM Operators to be similar to requirements typically included for 
seismic (e.g., airgun) surveys and have clarified education, training, 
and experience necessary to obtain NMFS' approval.
    Based on a recommendation by the Marine Mammal Commission, we have 
added a requirement that the Lead PSO must have a minimum of 90 days of 
at-sea experience and must have obtained this experience within the 
last 18 months.
    We have added a requirement to have at least three PSOs on pile 
driving vessels rather than two PSOs, as was originally described in 
the proposed rule.
    Based on a recommendation by the Marine Mammal Commission, we have 
added a requirement that increases the time that PAM data must be 
reviewed prior to all UXO/MEC detonations from 1 to 24 hours (except in 
emergency cases where the 24-hour delay before the detonation occurred 
would create risk to human safety).
    We have added a requirement for a double big bubble curtain placed 
at a distance that would avoid damage to the nozzle holes during all 
UXO/MEC detonations.
    Based on a recommendation by the Marine Mammal Commission, we have 
added a requirement that a pressure transducer must be used during all 
UXO/MEC detonations.
    We have added a requirement stating that Ocean Wind must use at 
least one additional noise attenuation system (NAS) in addition to a 
single bubble curtain and other devices for noise attenuation.
    We have added requirements that SFV must be conducted on every pile 
until measured noise levels are at or below the modeled noise levels, 
assuming 10 dB, for at least three consecutive monopiles and for each 
UXO/MEC detonation.
    We have added a requirement that Ocean Wind must deploy at least 
eight hydrophones at four locations (one bottom and one mid-water 
column at each location) along an azimuth that is likely to see lowest 
propagation loss and two hydrophones (one bottom and one mid-water) at 
750 m, 90 degrees from the primary azimuth during installation of all 
piles where SFV monitoring is required and equivalent requirements 
during all UXO/MEC detonations.
    NMFS has changed the submission date from 90 to 180 days prior to 
the start of pile driving or UXO/MEC detonation commencement for the 
Pile Driving and UXO/MEC Marine Mammal Monitoring Plan and the PAM Plan 
(noting the Vessel Strike Avoidance and Vibratory Pile Driving Plans 
retain the 90-day requirement as these activities are very nearshore).
    We have removed the requirements for reviewing data on an annual 
and biennial basis for adaptive management and instead will make 
adaptive management decisions as new information warrants it.

Description of Marine Mammals in the Specific Geographic Region

    As noted in the Changes From the Proposed to Final Rule section, 
since the publication of the proposed rule (87 FR 64868, October 26, 
2022), updates have been made to the abundance estimate for North 
Atlantic right whales and the UME summaries of multiple species. These 
changes are described in detail in the sections below. Otherwise, the 
Description of Marine Mammals in the Geographic Area section has not 
changed since the publication of the proposed rule in the Federal 
Register (87 FR 64868, October 26, 2022).
    Several marine mammal species occur within the specific geographic 
region. 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 
affected species (Ocean Wind, 2022b). NMFS fully considered all of this 
information, and we refer the reader to these descriptions in the 
application, incorporated here by reference, instead of reprinting the 
information. Additional information regarding population trends and 
threats may be found in NMFS' 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 2 lists all species or stocks for which take is authorized 
under this final rule and summarizes information related to the species 
or stock, including regulatory status under the MMPA and Endangered 
Species Act (ESA) and potential biological removal (PBR), where known. 
PBR is defined 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; (16 U.S.C. 1362(20))). 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 2 are the most recent available data at the time of publication 
which can be found in NMFS' 2022 final SARs (Hayes et al., 2023), 
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

[[Page 62925]]



                            Table 2--Marine Mammal Species \e\ That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \a\          abundance survey) \b\               SI \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             338 (0; 332; 2020) \f\        0.7   \f\ 31.2
Family Balaenopteridae (rorquals):
    Blue whale......................  Balaenoptera musculus..  Western North Atlantic.  E, D, Y             UNK (UNK; 402; 1980-          0.8          0
                                                                                                             2008).
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24; 5,573;            11        1.8
                                                                                                             2016).
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, N             1,396 (0; 1,380; 2016)         22      12.15
    Minke whale.....................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.           Coastal.                                     2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Family Delphinidae:
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71; 54,433;         544         27
                                                                                                             2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic-- -, -, N             62,851 (0.23; 51,914;         519         28
                                                                Offshore.                                    2016).
                                                               Northern Migratory       -, -, Y             6,639 (0.41; 4,759;            48  12.2-21.5
                                                                Coastal.                                     2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             172,974 (0.21;              1,452        390
                                                                                                             145,216; 2016).
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.30; 30,627;         306          9
                                                                                                             2016).
    Short-finned pilot whale........  Globicephala             Western North Atlantic.  -, -, N             28,924 (0.24, 23,637,         236        136
                                       macrorhynchus.                                                        2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             35,215 (0.19; 30,051;         301         34
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             95,543 (0.31; 74,034;         851        164
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \d\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,300 (0.22; 22,785;       1,458      4,453
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\b\ NMFS' marine mammal stock assessment reports can be found online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\c\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, vessel strike).
\d\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,431. The annual M/SI value given is for the total stock.
\e\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2023)).
\f\ In the proposed rule (87 FR 64868, October 26, 2022), a population estimate of 368 was used which represented the best available science at the time
  of publication. However, since the publication of the proposed rule, a new estimate (n=338) was released in NMFS' draft and final 2022 SARs and has
  been incorporated into this final rule. In addition, the total annual average observed North Atlantic right whale mortality was updated in the final
  SARs from 8.1 to 31.2. Total annual average observed North Atlantic right whale mortality during the period 2016 through 2020 was 8.1 animals and
  annual average observed fishery mortality was 5.7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery mortality) are 2015
  through 2019 estimated annual means, accounting for undetected mortality and serious injury. (Hayes et al., 2023).

    All 38 species that could potentially occur in the Project Area are 
included in Table 3-1 of the Ocean Wind's 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 2, 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 depth in the development area).
    A detailed description of the species likely to be affected by the 
Project, including brief introductions to the species and relevant 
stocks as well as available information regarding population trends and 
threats, and information regarding local occurrence, were provided in 
the proposed rule (87 FR 64868, October 26, 2022). Since that time, a 
new SAR (Hayes et al., 2023) has become available for the North 
Atlantic right whale. Estimated abundance for

[[Page 62926]]

the species declined from 368 to 338 and annual M/SI increased from 8.1 
to 31.2. This large increase in annual serious injury/mortality is a 
result of NMFS including undetected annual M/SI in the total annual 
serious injury/mortality. The North Atlantic right whale population 
remains in decline, as described in the North Atlantic Right Whale 
species section below. We are not aware of any additional changes in 
the status of the species and stocks listed in Table 2; therefore, 
detailed descriptions are not provided here. Please refer to the 
proposed rule for these descriptions (87 FR 64868, October 26, 2022). 
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.
    Since the publication of the proposed rule, the following updates 
have occurred to the below species in regards to general information or 
their active UMEs.

North Atlantic Right Whale

    In August 2023, NMFS released its final 2022 SARs, which updated 
the population estimate (Nbest) of North Atlantic right 
whales from 368 to 338 individuals and the annual M/SI value from 8.1 
to 31.2 due to the addition of estimated undetected mortality and 
serious injury, as described above, which had not been previously 
included in the SAR. The population estimate is slightly lower than the 
North Atlantic Right Whale Consortium's 2022 Report Card, which 
identifies the population estimate as 340 individuals (Pettis et al., 
2023). Elevated North Atlantic 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. Since 
publication of the proposed rule, the number of animals considered part 
of the UME has increased. As of August 16, 2023, there have been 36 
confirmed mortalities (dead, stranded, or floaters), 0 pending 
mortalities, and 34 seriously injured free-swimming whales for a total 
of 70 whales. As of October 14, 2022, the UME also considers animals 
(n=45) with sub-lethal injury or illness (called ``morbidity'') 
bringing the total number of whales in the UME to 115. More information 
about the North Atlantic right whale UME is available online at: 
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.

Humpback Whale

    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. This event was 
declared a UME in April 2017. Partial or full necropsy examinations 
have been conducted on approximately half of the 204 known cases (as of 
August 16, 2023). Of the whales examined (approximately 90), about 40 
percent had evidence of human interaction, either vessel strike or 
entanglement (refer to https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast). While a portion of the whales have shown evidence of 
pre-mortem vessel strike, this finding is not consistent across all 
whales examined and more research is needed. NOAA is consulting with 
researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    Since December 1, 2022, the number of humpback strandings along the 
mid-Atlantic coast, including New Jersey, has been elevated. In some 
cases, the cause of death is not yet known. In others, vessel strike 
has been deemed the cause of death. As the humpback whale population 
has grown, they are seen more often in the Mid-Atlantic. These whales 
may be following their prey (small fish) which are reportedly close to 
shore in the winter. These prey also attract fish that are of interest 
to recreational and commercial fishermen. This increases the number of 
boats and fishing gear in these areas. More whales in the water in 
areas traveled by boats of all sizes increases the risk of vessel 
strikes. Vessel strikes and entanglement in fishing gear are the 
greatest human threats to large whales.

Minke Whale

    Since January 2017, a UME has been declared based on elevated minke 
whale mortalities detected along the Atlantic coast from Maine through 
South Carolina. As of August 16, 2023, a total of 156 minke whales have 
stranded during this UME. Full or partial necropsy examinations were 
conducted on more than 60 percent of the whales. Preliminary findings 
have shown evidence of human interactions or infectious disease in 
several of the whales, but these findings are not consistent across all 
of the whales examined, so more research is needed. This UME has been 
declared non-active and is pending closure. More information is 
available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast.

Phocid Seals

    Since June 2022, elevated numbers of harbor seal and gray seal 
mortalities have occurred across the southern and central coast of 
Maine. This event was declared a UME in July 2022. Preliminary testing 
of samples has found some harbor and gray seals are positive for highly 
pathogenic avian influenza. While the UME is not occurring in the 
Project Area, the populations affected by the UME are the same as those 
potentially affected by the Project. However, due to the two states 
being approximately 352 km (219 mi) apart, by water (from the most 
northern point of New Jersey to the most southern point of Maine), NMFS 
does not expect that this UME would be further conflated by the 
activities related to the Project. Information on this UME is available 
online at: https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.
    The above event was preceded by a different UME, occurring from 
2018--2020 (closure of the 2018-2020 UME is pending). Beginning in July 
2018, elevated numbers of harbor seal and gray seal mortalities 
occurred across Maine, New Hampshire, and Massachusetts. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers, therefore the UME investigation 
encompassed all seal strandings from Maine to Virginia. A total of 
3,152 reported strandings (of all species) occurred from July 1, 2018, 
through March 13, 2020. Full or partial necropsy examinations have been 
conducted on some of the seals and samples have been collected for 
testing. Based on tests conducted thus far, the main pathogen found in 
the seals is phocine distemper virus. NMFS is performing additional 
testing to identify any other factors that may be involved in this UME. 
Information on this UME is available online at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

[[Page 62927]]

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 3.

                  Table 3--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013). For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
NMFS notes that in 2019a, 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. (2019a) are identical to NMFS 2018 Revised Technical 
Guidance). When NMFS updates our Technical Guidance, we will be 
adopting the updated Southall et al. (2019a) hearing group 
classification.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the Project's specified 
activities have the potential to result in the harassment of marine 
mammals in the specified geographic region. The proposed rule (87 FR 
64868, October 26, 2022) included a discussion of the effects of 
anthropogenic noise on marine mammals and the potential effects of 
underwater noise from Ocean Wind's project activities on marine mammals 
and their habitat. That information and analysis is incorporated by 
reference into this final rule determination and is not repeated here; 
please refer to the notice of the proposed rule (87 FR 64868, October 
26, 2022).

Estimated Take

    As noted in the Changes From the Proposed to Final Rule section, 
minor changes to the estimated and authorized take for several species 
have been made, based on recommendations received during the public 
comment period and based on a mathematical error NMFS found for a 
single species. These changes are described in detail in the sections 
below and, otherwise, the methodology for, and amount of, estimated 
take has not changed since the proposed rule.
    This section provides an estimate of the number of incidental takes 
authorized 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, vibratory 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 required 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 authorized for this project. Below we describe how the 
take was 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

[[Page 62928]]

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 authorized take estimates.

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 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 4). 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) sources, and, therefore, the 120 and 160 
dB re 1 [mu]Pa (rms) thresholds are applicable. NMFS notes there are 
separate explosive thresholds to account for Level B harassment from a 
single detonation per day and those are included in Table 5 below.
    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 project includes the 
use of impulsive and non-impulsive sources.
    These thresholds are provided in Table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

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

    Explosive sources--Based on the best available science, NMFS uses 
the acoustic and pressure thresholds indicated in Tables 5 and 6 to 
predict the onset of behavioral harassment, TTS, PTS, tissue damage, 
and mortality

[[Page 62929]]

from explosive detonations. Given Ocean Wind would be limited to 
detonating one UXO/MEC per day, the TTS threshold is used to estimate 
the potential for Level B (behavioral) harassment (i.e., individuals 
exposed above the TTS threshold may also be harassed by behavioral 
disruption but we do not anticipate any impacts from exposure to UXO/
MEC detonation below the TTS threshold would constitute behavioral 
harassment).

        Table 5--PTS Onset, TTS Onset, for Underwater Explosives
                              [NMFS, 2018]
------------------------------------------------------------------------
                                     PTS impulsive       TTS impulsive
          Hearing group               thresholds          thresholds
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Cell 1: Lpk,flat:   Cell 2: Lpk,flat:
                                   219 dB;             213 dB;
                                   LE,LF,24h: 183 dB.  LE,LF,24h: 168
                                                       dB.
Mid-Frequency (MF) Cetaceans....  Cell 4: Lpk,flat:   Cell 5: Lpk,flat:
                                   230 dB;             224 dB;
                                   LE,MF,24h: 185 dB.  LE,MF,24h: 170
                                                       dB.
High-Frequency (HF) Cetaceans...  Cell 7: Lpk,flat:   Cell 8: Lpk,flat:
                                   202 dB;             196 dB;
                                   LE,HF,24h: 155 dB.  LE,HF,24h: 140
                                                       dB.
Phocid Pinnipeds (PW)             Cell 10: Lpk,flat:  Cell 11: Lpk,flat:
 (Underwater).                     218 dB;             212 dB;
                                   LE,PW,24h: 185 dB.  LE,PW,24h: 170
                                                       dB.
------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever
  results in the largest isopleth for calculating PTS/TTS onset.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa,
  and cumulative sound exposure level (LE) has a reference value of
  1[micro]Pa\2\s. In this table, thresholds are abbreviated to reflect
  American National Standards Institute standards (ANSI, 2013). However,
  ANSI defines peak sound pressure as incorporating frequency weighting,
  which is not the intent for this Technical Guidance. Hence, the
  subscript ``flat'' is being included to indicate peak sound pressure
  should be flat weighted or unweighted within the overall marine mammal
  generalized hearing range. The subscript associated with cumulative
  sound exposure level thresholds indicates the designated marine mammal
  auditory weighting function (LF, MF, and HF cetaceans, and PW
  pinnipeds) and that the recommended accumulation period is 24 hours.
  The cumulative sound exposure level thresholds could be exceeded in a
  multitude of ways (i.e., varying exposure levels and durations, duty
  cycle). When possible, it is valuable for action proponents to
  indicate the conditions under which these acoustic thresholds will be
  exceeded.

    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 6). 
These criteria have been developed by the U.S. Department of the Navy 
(DoN, 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 6).

                        Table 6--Lung and Gastrointestinal (G.I.) Tract Injury Thresholds
                                                   [DoN, 2017]
----------------------------------------------------------------------------------------------------------------
                                     Mortality (severe    Slight lung injury
          Hearing group               lung injury) *              *                    G.I. tract injury
----------------------------------------------------------------------------------------------------------------
All Marine Mammals...............  Cell 1: Modified      Cell 2: Modified     Cell 3: Lpk,flat: 237 dB.
                                    Goertner model;       Goertner model;
                                    Equation 1.           Equation 2.
----------------------------------------------------------------------------------------------------------------
* Lung injury (severe and slight) thresholds are dependent on animal mass (Recommendation: Table C.9 from DoN
  (2017) based on adult and/or calf/pup mass by species).
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa. In this table, thresholds are abbreviated
  to reflect American National Standards Institute standards (ANSI, 2013). However, ANSI defines peak sound
  pressure as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the
  subscript ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted
  within the overall marine mammal generalized hearing range.
Modified Goertner Equations for severe and slight lung injury (pascal-second):
Equation 1: 103M\1/3\(1 + D/10.1)\1/6\ Pa-s
Equation 2: 47.5M\1/3\(1 + D/10.1)\1/6\ Pa-s
M animal (adult and/or calf/pup) mass (kilogram (kg)) (Table C.9 in DoN, 2017).
D animal depth (meters).

    Below, we discuss the acoustic modeling, marine mammal density 
information, and take estimation for each of Ocean Wind's construction 
activities. NMFS has carefully considered all information and analysis 
presented by Ocean Wind as well as all other applicable information 
and, based on the best available science, concurs that Ocean Wind'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, 2023), 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, 2023). 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

[[Page 62930]]

et al., 2023). 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) on October 26, 2022.
    The densities used to estimate take from WTG and OSS 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 miles (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). 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 analyzes and provides certainty that 
the maximum of take has been analyzed. Given the small number of jacket 
piles needed for OSS compared to the number of monopile WTGs, these 
were assumed to be installed in the highest density month only.
    For cofferdam and goal post density estimates, a 10-km (6.21-mi) 
perimeter was applied around each of the cofferdam and goal post 
locations (Figure 2 of the Revised Density and Take Estimate Memo), 
with densities averaged among the seven cofferdam and goal post 
locations to result in one density table for all cofferdams and goal 
posts. Due to the uncertainty of the specific months that temporary 
cofferdam and goal post 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 cofferdams and goal posts 
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 the seven installation and 
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.
    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, Roberts et al. (2023) does not 
differentiate by stock. This is true for the bottlenose dolphins, for 
which take has been authorized for two stocks (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. Tables 7, 8, 9, and 10 
below demonstrate all of the densities used in the exposure and take 
analyses.

 Table 7--The Highest and Second Highest Monthly Marine Mammal and Annual Densities (Animals per Km\2\) Used for
                      the Modeling of Ocean Wind's WTGs and OSSs From May Through December
----------------------------------------------------------------------------------------------------------------
                                                     Monopile foundations                   Jacket foundations
        Marine mammal species         --------------------------------------------------------------------------
                                        First highest density    Second highest density   First highest density
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\.......  0.00045 (December).....  0.00012 (November).....  0.00045 (December).
Blue whale \a\.......................  (\c\)..................  (\c\)..................  (\c\).
Fin whale \a\........................  0.00141 (December).....  0.00080 (May)..........  0.00141 (December).

[[Page 62931]]

 
Humpback whale.......................  0.00126 (December).....  0.00085 (May)..........  0.00126 (December).
Minke whale..........................  0.00674 (May)..........  0.00154 (June).........  0.00674 (May).
Sei whale \a\........................  0.00042 (December).....  0.00021 (November).....  0.00042 (December).
Sperm whale \a\......................  0.00008 (May)..........  0.00004 (December).....  0.00008 (May).
Atlantic spotted dolphin.............  (\c\)..................  (\c\)..................  (\c\).
Atlantic white-sided dolphin.........  0.00643 (May)..........  0.00539 (November).....  0.00643 (May).
Bottlenose dolphin (offshore stock)    0.11352 (August).......  0.11146 (November).....  0.11352 (August).
 \b\.
Bottlenose dolphin (coastal stock)     0.51100 (September)....  0.47620 (August).......  0.51100 (September).
 \b\.
Common dolphin.......................  0.05157 (December).....  0.04682 (November).....  0.05157 (December).
Long-finned pilot whale \b\..........  0.00015 (annual).......  n/a....................  0.00015 (annual).
Short-finned pilot whale \b\.........  0.00011 (annual).......  n/a....................  0.00011 (annual).
Risso's dolphin......................  0.00096 (December).....  0.00063 (November).....  0.00096 (December).
Harbor porpoise......................  0.02456 (December).....  0.00801 (May)..........  0.02456 (December).
Gray seal............................  0.03517 (December).....  0.03017 (May)..........  0.03517 (December).
Harbor seal..........................  0.09830 (December).....  0.08433 (May)..........  0.09830 (December).
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the Endangered Species Act.
\b\ Densities were adjusted by their relative abundance.
\c\ Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts to those
  species approach zero due to their low predicted densities in the Project; therefore, they were excluded from
  all quantitative analyses and tables based on modeling results.


  Table 8--The Marine Mammal Average and Annual Densities (Animals per
    Km\2\) Used for Analysis of Ocean Wind's Cofferdam and Goal Post
            Installation and Removal for October Through May
------------------------------------------------------------------------
                                      Period of density      Estimated
       Marine mammal species                used              density
------------------------------------------------------------------------
North Atlantic right whale \a\....  October-May average.         0.00028
Blue whale \a\....................  Annual Density......         0.00075
Fin whale \a\.....................  October-May average.         0.00039
Humpback whale....................  October-May average.         0.00062
Minke whale.......................  October-May average.         0.00078
Sei whale \a\.....................  October-May average.         0.00014
Sperm whale \a\...................  October-May average.         0.00002
Atlantic spotted dolphin..........  (\c\)...............           (\c\)
Atlantic white-sided dolphin......  October-May average.         0.00077
Bottlenose dolphin (offshore        October-May average.         0.14866
 stock) \b\.
Bottlenose dolphin (coastal stock)  October-May average.         0.32471
 \b\.
Common dolphin....................  October-May average.         0.00409
Long-finned pilot whale \b\.......  Annual Density......         0.00001
Short-finned pilot whale \b\......  Annual Density......         0.00001
Risso's dolphin...................  October-May average.         0.00002
Harbor porpoise...................  October-May average.         0.00854
Gray seal.........................  October-May average.         0.03602
Harbor seal.......................  October-May average.         0.10069
------------------------------------------------------------------------
\a\ Listed as Endangered under the Endangered Species Act.
\b\ Densities were adjusted by their relative abundance (short-finned
  pilot whale = 0.00000133395 animals/km\2\; long-finned pilot whale =
  0.00000181 animals/km\2\).
\c\ No exposure modeling was performed for this species and it was added
  later after analysis had concluded.


Table 9--The Highest Monthly Marine Mammal and Annual Densities (Animals
   per Km \2\) Used for the Modeling of Ocean Wind's UXOs/MECs for May
                             Through October
------------------------------------------------------------------------
          Marine mammal species                    Density used
------------------------------------------------------------------------
North Atlantic right whale \a\..........  0.00008 (May).
Blue whale \a\..........................  0.00001 (Annual)
Fin whale \a\...........................  0.00068 (May).
Humpback whale..........................  0.00081 (May).
Minke whale.............................  0.00627 (May).
Sei whale \a\...........................  0.00021 (May).
Sperm whale \a\.........................  0.00008 (May).
Atlantic spotted dolphin................  (\c\)
Atlantic white-sided dolphin............  0.00545 (May).
Bottlenose dolphin (offshore stock) \b\.  0.12615 (August).
Bottlenose dolphin (coastal stock) \b\..  0.71100 (September).
Common dolphin..........................  0.02407 (May).
Long-finned pilot whale \b\.............  0.00013 (Annual).

[[Page 62932]]

 
Short-finned pilot whale \b\............  0.00010 (Annual).
Risso's dolphin.........................  0.00021 (May).
Harbor porpoise.........................  0.00789 (May).
Gray seal...............................  0.03387 (May).
Harbor seal.............................  0.09467 (May).
------------------------------------------------------------------------
\a\ Listed as Endangered under the Endangered Species Act.
\b\ Densities were adjusted by their relative abundance.
\c\ No exposure modeling was performed for this species and it was added
  later after analysis had concluded.


    Table 10--The Highest Monthly Marine Mammal, Average, and Annual
 Densities in (Animals per Km \2\) Used for Analysis of Ocean Wind's HRG
  Survey Effort for the Export Cable Route and Inter-Array Cables From
                        January Through December
------------------------------------------------------------------------
                                                          Export cable
     Marine mammal species          Wind farm area            route
------------------------------------------------------------------------
North Atlantic right whale \a\  0.00026 (Average        0.00026 (Average
                                 Annual).                Annual).
Blue whale \a\................  0.00001 (Annual)......  0.00001
                                                         (Annual).
Fin whale \a\.................  0.00086 (Average        0.00054 (Average
                                 Annual).                Annual).
Humpback whale................  0.00069 (Average        0.00057 (Average
                                 Annual).                Annual).
Minke whale...................  0.00171 (Average        0.00099 (Average
                                 Annual).                Annual).
Sei whale \a\.................  0.00022 (Average        0.00016 (Average
                                 Annual).                Annual).
Sperm whale \a\...............  0.00003 (Average        0.00002 (Average
                                 Annual).                Annual).
Atlantic spotted dolphin......  (\c\).................  (\c\).
Atlantic white-sided dolphin..  0.00399 (Average        0.00130 (Average
                                 Annual).                Annual).
Bottlenose dolphin (offshore    0.06119 (Average        0.14499 (Average
 stock) \b\.                     Annual).                Annual).
Bottlenose dolphin (coastal     0.18073 (Average        0.36680 (Average
 stock) \b\.                     Annual).                Annual).
Common dolphin................  0.02418 (Average        0.00702 (Average
                                 Annual).                Annual).
Long-finned pilot whale \b\...  0.00018 (Annual)......  0.00002
                                                         (Annual).
Short-finned pilot whale \b\..  0.00014 (Annual)......  0.00001
                                                         (Annual).
Risso's dolphin...............  0.00029 (Average        0.00005 (Average
                                 Annual).                Annual).
Harbor porpoise...............  0.01518 (Average        0.00925 (Average
                                 Annual).                Annual).
Gray seal.....................  0.01687 (Average        0.02165 (Average
                                 Annual).                Annual).
Harbor seal...................  0.04715 (Average        0.06051 (Average
                                 Annual).                Annual).
------------------------------------------------------------------------
\a\ Listed as Endangered under the Endangered Species Act.
\b\ Densities were adjusted by their relative abundance.
\c\ No exposure modeling was performed for this species and it was added
  later after analysis had concluded.

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 and goal post 
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
    As described above, Ocean Wind plans to install up to 98 WTGs and 3 
OSS in the Lease Area. The proposed rule modeled and estimated take of 
marine mammals for two OSS construction scenarios (i.e., monopile 
foundation and jacket foundation with pin piles) and carried the jacket 
foundation scenario forward into the total estimated take from all 
activities as it resulted in the higher estimated take number between 
the two scenarios. Because Ocean Wind's Construction and Operation Plan 
(COP) allows for the construction of either scenario, the final rule's 
estimated take analysis conservatively assumes the jacket foundation 
scenario will occur. For clarity, we have limited the estimated take 
analysis in this final rule to the jacket foundation scenario. For the 
analysis of the monopile foundation scenario, please refer to the 
Estimated Take section of the proposed rule.
    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 11).

                 Table 11--Estimated Impact Hammer Energy Schedules for Monopiles and Pin Piles
----------------------------------------------------------------------------------------------------------------
                 Monopile foundations (8/11-m)                       Jacket foundations (Pin piles; 2.44-m)
----------------------------------------------------------------------------------------------------------------
                      Hammer: IHC S-4000                                       Hammer: IHC S-2500
----------------------------------------------------------------------------------------------------------------
                                                     Pile                                              Pile
    Energy level (kJ) \1\       Strike count     penetration      Energy level     Strike count     penetration
                                                  depth (m)           (kJ)                             depth
----------------------------------------------------------------------------------------------------------------
500..........................             763               7   500.............             554               3

[[Page 62933]]

 
2,000........................             980               6   200.............           5,373              29
1,000........................             375               3   750.............           1,402               8
3,000........................             385               2   1,000...........           1,604               8
4,000........................           5,006              16   1,500...........           1,310               6
3,000........................           1,135               6   2,500...........           1,026               6
4,000........................           2,202              10   1,500...........           1,922              10
                              ---------------------------------                  -------------------------------
    Total....................          10,846              50      Total........          13,191              70
----------------------------------------------------------------------------------------------------------------
\1\ Sediment types with greater resistances require hammers that deliver higher energy strikes and/or an
  increased number of strikes relative to installation in softer sediments. Typically the maximum sound levels
  usually occur during the last stage of impact pile installation where the greatest resistance is encountered
  (Betke, 2008).

    Both monopiles and pin piles were assumed to be vertically aligned 
and driven to a maximum depth of 50 m for all monopiles and 70 m for 
all 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:
     Up to two monopiles installed per day (4 hours per 
monopile; 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 could be 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); and
     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 GRL Wave Equation Analysis Program 
(GRLWEAP; wave equation analysis of pile driving) model and JASCO's 
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 three-dimensional (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

[[Page 62934]]

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 Lease 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 Lease 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). The estimated pile driving schedules (Table 16) 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 3D 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 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 12 and 13 below represent the ER95% 
exposure ranges (for SELcum and SPLrms) for 
monopiles foundations, with Table 12 demonstrating the ranges using the 
summer sound speed profile and Table 13 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 12, 13, 14, and 15 below, Ocean Wind would also 
employ a noise abatement system during all impact pile driving of 
monopiles. 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 the Mitigation section. 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.

[[Page 62935]]



   Table 12--Exposure Ranges (ER95%) to Level A Harassment Thresholds (SELcum) and Exposure Ranges (ER95%) and
  Acoustic Ranges (R95%) to Level B Harassment Threshold (SPLrms) for Monopile Foundations in the Summer (May-
         November), Assuming 10-dB Attenuation; Exposure Ranges Are for One (and Two) Monopiles per Day
----------------------------------------------------------------------------------------------------------------
                                                                      Exposure ranges (ER95%)     Acoustic range
                                                                                                      (R95%)
                                                                 -----------------------------------------------
                      Marine mammal species                           Level A         Level B         Level B
                                                                    harassment      harassment      harassment
                                                                       (km)            (km)            (km)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................................     1.28 (1.37)     2.95 (2.98)       \a\ 3.253
Blue whale *....................................................  ..............  ..............
Fin whale.......................................................     1.58 (1.65)     3.04 (3.13)
Humpback whale..................................................     1.14 (1.05)     3.10 (3.09)
Minke whale.....................................................     1.23 (1.26)     3.13 (3.10)
Sei whale.......................................................     1.36 (1.27)     3.13 (3.09)
Sperm whale.....................................................           0 (0)           0 (0)
Atlantic spotted dolphin *......................................  ..............  ..............
Atlantic white-sided dolphin....................................           0 (0)     3.10 (3.04)
Common dolphin..................................................           0 (0)     3.09 (3.05)
Bottlenose dolphin (coastal stock)..............................           0 (0)     2.80 (2.81)
Bottlenose dolphin (offshore stock).............................           0 (0)     2.90 (2.81)
Long-finned pilot whale.........................................           0 (0)           0 (0)
Short-finned pilot whale........................................           0 (0)     3.01 (3.08)
Risso's dolphin.................................................           0 (0)     3.06 (3.09)
Harbor porpoise.................................................     0.84 (0.88)     3.11 (3.07)
Gray seal.......................................................        0 (0.08)     3.21 (3.09)
Harbor seal.....................................................        0 (0.06)     3.11 (3.08)
----------------------------------------------------------------------------------------------------------------
* Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts on the
  species approach zero due to their low predicted densities in the Project Area. These species were excluded
  from quantitative analyses and tables. Results for these scenarios can be found in Appendix A in the ITA
  application.
\a\ The acoustic range can be found in Table H-25 in Appendix H of Ocean Wind's ITA application. The value shown
  here is for 170 dB as Appendix H did not account for 10 dB of sound attenuation.


   Table 13--Exposure Ranges (ER95%) to Level A Harassment Thresholds (SELcum) and Exposure Ranges (ER95%) and
     Acoustic Ranges (R95%) to Level B Harassment Threshold (SPLrms) for Monopile Foundations in the Winter
         (December), Assuming 10-dB Attenuation; Exposure Ranges Are for One (and Two) Monopiles per Day
----------------------------------------------------------------------------------------------------------------
                                                                      Exposure ranges (ER95%)     Acoustic range
                                                                                                      (R95%)
                                                                 -----------------------------------------------
                      Marine mammal species                           Level A         Level B         Level B
                                                                    harassment      harassment      harassment
                                                                       (km)            (km)            (km)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale (migrating)..........................     1.85 (2.03)     3.28 (3.35)       \a\ 3.534
Blue whale *....................................................  ..............  ..............
Fin whale.......................................................     2.33 (2.49)     3.48 (3.44)
Humpback whale (migrating)......................................     1.75 (1.77)     3.32 (3.37)
Minke whale (migrating).........................................     1.98 (1.98)     3.39 (3.42)
Sei whale (migrating)...........................................     1.86 (2.19)     3.42 (3.45)
Sperm whale.....................................................           0 (0)           0 (0)
Atlantic spotted dolphin *......................................  ..............  ..............
Atlantic white-sided dolphin....................................           0 (0)     3.37 (3.33)
Bottlenose dolphin (coastal stock)..............................           0 (0)     3.12 (3.15)
Bottlenose dolphin (offshore stock).............................           0 (0)     3.22 (3.18)
Common dolphin..................................................           0 (0)     3.40 (3.36)
Long-finned pilot whale.........................................           0 (0)           0 (0)
Short-finned pilot whale........................................           0 (0)     3.31 (3.41)
Risso's dolphin.................................................           0 (0)     3.49 (3.36)
Harbor porpoise.................................................     1.06 (1.43)     3.34 (3.37)
Gray seal.......................................................        0 (0.14)     3.44 (3.42)
Harbor seal.....................................................     0.07 (0.24)     3.47 (3.31)
----------------------------------------------------------------------------------------------------------------
* Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts on the
  species approach zero due to their low predicted densities in the Project Area. These species were excluded
  from quantitative analyses and tables. Results for these scenarios can be found in Appendix A in the ITA
  application.
\a\ The acoustic range can be found in Table H-26 in Appendix H of Ocean Wind's ITA application. The value shown
  here is for 170 dB as Appendix H did not account for 10 dB of sound attenuation.


[[Page 62936]]

    Tables 14 and 15 below represent the exposure ranges 
(ER95%) for jacket foundations, with Table 14 demonstrating 
the ranges using the summer sound speed profile and Table 15 using the 
winter sound speed profile. For both tables, two pin piles and three 
pin piles (the three pin pile ranges are shown in the parenthesis) per 
day are provided. As with Tables 12 and 13 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, 6, 15, and 20 dB) can be found in the ITA 
application.

   Table 14--Exposure Ranges (ER95%) to Level A Harassment Thresholds (SELcum) and Exposure Ranges (ER95%) and
Acoustic Ranges (R95%) to Level B Harassment Threshold (SPLrms) for Jacket Foundations (Pin Piles) in the Summer
      (May-November), Assuming 10-dB Attenuation; Exposure Ranges Are for Two (and Three) Pin Piles per Day
----------------------------------------------------------------------------------------------------------------
                                                                      Exposure ranges (ER95%)     Acoustic range
                                                                                                      (R95%)
                                                                 -----------------------------------------------
                      Marine mammal species                           Level A         Level B         Level B
                                                                    harassment      harassment      harassment
                                                                       (km)            (km)            (km)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................................     0.51 (0.58)     1.64 (1.72)       \a\ 2.155
Blue whale *....................................................  ..............  ..............  ..............
Fin whale.......................................................     0.55 (0.59)     1.82 (1.79)  ..............
Humpback whale..................................................     0.40 (0.42)     1.81 (1.86)  ..............
Minke whale.....................................................     0.55 (0.51)     1.76 (1.76)  ..............
Sei whale.......................................................     0.37 (0.36)     1.81 (1.84)  ..............
Sperm whale.....................................................           0 (0)           0 (0)  ..............
Atlantic spotted dolphin *......................................  ..............  ..............  ..............
Atlantic white-sided dolphin....................................           0 (0)     1.55 (1.72)  ..............
Bottlenose dolphin (offshore stock).............................           0 (0)     1.58 (1.60)  ..............
Bottlenose dolphin (coastal stock)..............................           0 (0)     1.53 (1.46)  ..............
Common dolphin..................................................           0 (0)     1.72 (1.72)  ..............
Long-finned pilot whale.........................................           0 (0)           0 (0)  ..............
Short-finned pilot whale........................................           0 (0)           0 (0)  ..............
Risso's dolphin.................................................           0 (0)     1.61 (1.65)  ..............
Harbor porpoise.................................................     0.61 (0.61)     1.75 (1.73)  ..............
Gray seal.......................................................       0 (<0.01)     1.75 (1.65)  ..............
Harbor seal.....................................................       0 (<0.01)     1.96 (1.91)  ..............
----------------------------------------------------------------------------------------------------------------
* Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts on the
  species approach zero due to their low predicted densities in the Project Area. These species were excluded
  from quantitative analyses and tables. Results for these scenarios can be found in Appendix A in the ITA
  application.
\a\ The acoustic range can be found in Table H-41 in Appendix H of Ocean Wind's ITA application. The value shown
  here is for 170 dB as Appendix H did not account for 10 dB of sound attenuation.


   Table 15--Exposure Ranges (ER95%) to Level A Harassment Thresholds (SELcum) and Exposure Ranges (ER95% and
Acoustic Ranges (R95%) to Level B Harassment Threshold (SPLrms) for Jacket Foundations (Pin Piles) in the Winter
        (December), Assuming 10-dB Attenuation; Exposure Distances for Two (and Three) Pin Piles per Day
----------------------------------------------------------------------------------------------------------------
                                                                      Exposure ranges (ER95%)     Acoustic range
                                                                                                      (R95%)
                                                                 -----------------------------------------------
                      Marine mammal species                           Level A         Level B         Level B
                                                                    harassment      harassment      harassment
                                                                       (km)            (km)            (km)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................................     0.69 (0.70)     2.06 (2.11)       \a\ 2.522
Blue whale *....................................................  ..............  ..............  ..............
Fin whale.......................................................     0.84 (0.74)     2.11 (2.04)  ..............
Humpback whale..................................................     0.52 (0.51)     2.18 (2.11)  ..............
Minke whale.....................................................     0.58 (0.59)     2.09 (2.06)  ..............
Sei whale.......................................................     0.59 (0.53)     2.13 (2.03)  ..............
Sperm whale.....................................................           0 (0)           0 (0)  ..............
Atlantic spotted dolphin *......................................  ..............  ..............  ..............
Atlantic white-sided dolphin....................................           0 (0)     2.12 (2.08)  ..............
Bottlenose dolphin (offshore stock).............................           0 (0)     1.91 (1.85)  ..............
Bottlenose dolphin (coastal stock)..............................           0 (0)     1.97 (1.88)  ..............
Common dolphin..................................................           0 (0)     2.09 (2.06)  ..............
Long-finned pilot whale.........................................           0 (0)           0 (0)  ..............
Short-finned pilot whale........................................           0 (0)           0 (0)  ..............
Risso's dolphin.................................................           0 (0)     1.93 (1.87)  ..............
Harbor porpoise.................................................     0.63 (0.70)     2.16 (2.06)  ..............
Gray seal.......................................................       0 (<0.01)     2.33 (2.14)  ..............

[[Page 62937]]

 
Harbor seal.....................................................       0 (<0.01)     2.24 (2.19)  ..............
----------------------------------------------------------------------------------------------------------------
* Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts on the
  species approach zero due to their low predicted densities in the Project Area. These species were excluded
  from quantitative analyses and tables. Results for these scenarios can be found in Appendix A in the ITA
  application.
\a\ The acoustic range can be found in Table H-42 in Appendix H of Ocean Wind's ITA application. The value shown
  here is for 170 dB as Appendix H did not account for 10 dB of sound attenuation.

    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 
harassment thresholds. Sound exposure models like JASMINE use 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 3D 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-hour period, the model 
does not allow it to be taken a second time in that same period, but 
rather resets the 24-hour period on a sliding scale across 7 days of 
exposure. Specifically, an individual animat's accumulated energy 
levels (SELcum) are summed over that 24-hour 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 1 day and likely overestimate 
the number of individuals taken for some species. Specifically, as the 
24-hour 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. The scenario for the three OSS

[[Page 62938]]

foundations was assumed to consist of 48 pin piles (at a rate of 3 per 
day for a total of 16 days). The estimated construction schedule is 
shown below in Table 16.

                     Table 16--Construction Schedule Assumptions for WTG and OSS Foundations
----------------------------------------------------------------------------------------------------------------
                                                                                    Days of impact pile driving
                                                                                 -------------------------------
                Foundation type                           Configuration            First highest  Second highest
                                                                                   density month   density month
----------------------------------------------------------------------------------------------------------------
Wind Turbine Generator (WTG)..................  Monopile foundation, 2 piles per              30              19
                                                 day.
Offshore Substation (OSS).....................  Jacket foundation, 3 pin piles                16               0
                                                 per day.
----------------------------------------------------------------------------------------------------------------
Note:--Indicate no piling days.

    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 for each piling scenario (e.g., two monopiles per 
day); and
    (4) The number of potential exposures above Level A harassment and 
Level B harassment thresholds were calculated per month and then 
results from all months were summed.
    The results of marine mammal exposure modeling for the joint 
foundation approach (WTGs use monopiles; OSSs use jackets with pin 
piles) over 5 years assuming 10-dB attenuation only are shown in Tables 
17 and 18, as these form the basis for the authorized take. 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.

      Table 17--Modeled Potential Level A Harassment and Level B Harassment Exposures (Assuming 10-dB Sound
 Attenuation) Due to Impact Pile Driving of a Monopile Foundation (Assuming 98 Total Monopiles for WTGs) Over 5
                                                      Years
----------------------------------------------------------------------------------------------------------------
                                                                                      Level A         Level B
                      Marine mammal species                         Population      harassment      harassment
                                                                     estimate        (SELcum)       (160 dBrms)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..................................             338         \c\ 0.9            3.11
Blue whale \a\..................................................     \b\ Unknown         \e\ n/a         \e\ n/a
Fin whale \a\...................................................           6,802            3.69            7.05
Humpback whale..................................................           1,396            4.24           13.82
Minke whale.....................................................          21,968           18.42           52.25
Sei whale \a\...................................................           6,292            0.89            2.00
Sperm whale \a\.................................................           4,349               0               0
Atlantic spotted dolphin........................................          39,921         \e\ n/a         \e\ n/a
Atlantic white-sided dolphin....................................          93,233               0            71.5
Bottlenose dolphin (offshore stock).............................          62,851               0          935.91
Bottlenose dolphin (coastal stock)..............................           6,639               0               0
Common dolphin..................................................         172,974               0        1,229.37
Long-finned pilot whale.........................................          39,215               0               0
Short-finned pilot whale........................................          28,924               0            0.04
Risso's dolphin.................................................          35,215               0            7.06
Harbor porpoise \d\.............................................          95,543           51.31          233.89
Gray seal.......................................................          27,300            3.04          197.56
Harbor seal.....................................................          61,336           12.16          554.22
----------------------------------------------------------------------------------------------------------------
a--Listed as Endangered under the Endangered Species Act (ESA)
b--The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is
  utilizing this value for our small numbers determination, as shown in parenthesis.
c--Level A harassment exposures were initially estimated for this species, but due to the mitigation measures
  that Ocean Wind will be required to abide by, no Level A harassment take is expected, nor authorized. Instead,
  any exposure estimates that predicted Level A harassment were added to the authorized Level B harassment take.
d--The calculated Level A exposures are likely an overestimate as the modeled 10-dB sound reduction from the
  noise mitigation systems does not take into account that the reduction is greater at higher frequencies, which
  are best heard by harbor porpoises.
e--Exposure modeling for blue whales and Atlantic spotted dolphins was not conducted because the impacts on the
  species approached zero due to the low density estimates. Because of this, values for these species have been
  excluded from the quantitative analyses.


[[Page 62939]]


    Table 18--Modeled Potential Level A Harassment and Level B Harassment Exposures (Assuming 10-dB of Sound
  Attenuation) Due to Impact Pile Driving of OSS Foundations (Assuming Three Jackets With 48 Pin Piles) Over 5
                                                      Years
----------------------------------------------------------------------------------------------------------------
                                                                                                      Level B
                                                                    Population        Level A       harassment
                      Marine mammal species                          estimate       harassment      (160 dBrms)
                                                                                     (SELcum)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..................................             338        \c\ 0.10            0.75
Blue whale \a\..................................................     \b\ Unknown         \e\ n/a         \e\ n/a
Fin whale \a\...................................................           6,802            0.48            1.20
Humpback whale..................................................           1,396            0.54            3.63
Minke whale.....................................................          21,968            2.29           15.81
Sei whale \a\...................................................           6,292            0.14            0.45
Sperm whale \a\.................................................           4,349               0               0
Atlantic spotted dolphin........................................          39,921         \e\ n/a         \e\ n/a
Atlantic white-sided dolphin....................................          93,233               0           16.20
Bottlenose dolphin (offshore stock).............................          62,851               0          168.23
Bottlenose dolphin (coastal stock)..............................           6,639               0               0
Common dolphin..................................................         172,974               0          293.89
Long-finned pilot whale.........................................          39,215               0               0
Short-finned pilot whale........................................          28,924               0               0
Risso's dolphin.................................................          35,215               0            1.79
Harbor porpoise \d\.............................................          95,543           16.60           70.97
Gray seal.......................................................          27,300            0.32           38.59
Harbor seal.....................................................          61,336            0.43           99.14
----------------------------------------------------------------------------------------------------------------
a--Listed as Endangered under the Endangered Species Act (ESA)
b--The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is
  utilizing this value for our small numbers determination, as shown in parenthesis.
c--Level A harassment exposures were initially estimated for this species, but due to the mitigation measures
  that Ocean Wind will be required to abide by, no Level A harassment take is expected, nor authorized. Instead,
  any exposure estimates that predicted Level A harassment were added to the authorized Level B harassment take.
d--The calculated Level A harassment exposures are likely an overestimate as the modeled 10-dB sound reduction
  from the noise mitigation systems does not take into account that the reduction is greater at higher
  frequencies, which are best heard by harbor porpoises.
e--Exposure modeling for blue whales and Atlantic spotted dolphins was not conducted because the impacts on the
  species approached zero due to the low density estimates. Because of this, values for these species have been
  excluded from the quantitative analyses.

    Based on the exposure estimates for impact pile driving activities 
related to WTGs and OSS installation (monopile foundations and jacket 
foundations with pin piles), the authorized take is shown below in 
Tables 19 and 20. To determine the authorized 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).
    We note here that based on a comment from the Marine Mammal 
Commission, NMFS, in consultation with JASCO and Ocean Wind, has opted 
to allocate 10 percent of the authorized take of the offshore stock of 
bottlenose dolphins to the coastal stock during foundation 
installation. This does not change the total take numbers presented for 
these two stocks in Tables 33 and 34 at the end of the Estimated Take 
section. No takes of Level A harassment has been authorized for either 
of these stocks.

   Table 19--Authorized Take From Level A Harassment and Level B Harassment Resulting From Impact Pile Driving
              Associated With the WTG 8/11-m Monopile Foundations (Assuming 98 Total) Over 5 Years
----------------------------------------------------------------------------------------------------------------
                                                                                    Authorized      Authorized
                      Marine mammal species                         Population        Level A         Level B
                                                                     estimate       harassment      harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..................................             338           \b\ 0               4
Blue whale \a\..................................................         Unknown               0           \c\ 4
Fin whale \a\...................................................           6,802               4               8
Humpback whale..................................................           1,396               5              14
Minke whale.....................................................          21,968              19              53
Sei whale \a\...................................................           6,292               1           \d\ 2
Sperm whale \a\.................................................           4,349               0           \d\ 3
Atlantic spotted dolphin........................................          39,921               0          \d\ 45
Atlantic white-sided dolphin....................................          93,233               0              72
Bottlenose dolphin (offshore stock).............................          62,851               0         \e\ 842
Bottlenose dolphin (coastal stock)..............................           6,639               0          \e\ 94
Common dolphin..................................................         172,974               0           1,230
Long-finned pilot whale.........................................          39,215               0          \d\ 10
Short-finned pilot whale........................................          28,924               0          \d\ 10
Risso's dolphin.................................................          35,215               0          \d\ 30
Harbor porpoise.................................................          95,543              52             234
Gray seal.......................................................          27,300               4             198
Harbor seal.....................................................          61,336              13             555
----------------------------------------------------------------------------------------------------------------
a--Listed as Endangered under the Endangered Species Act (ESA).

[[Page 62940]]

 
b--JASCO's modeling estimated 0.90 Level A harassment exposures for North Atlantic right whales, but due to
  mitigation measures (see the Mitigation section), no Level A harassment takes are expected or authorized.
c--No Level B harassment exposures were estimated for blue whales, but up to four Level B harassment takes,
  which were not calculated through density estimates, are proposed in the event that four individuals approach
  the WTG foundation during installations.
d--The authorized take for sei whales (Kenney and Vigness-Raposa, 2010), 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) was adjusted based on mean group size.
e--Based on a comment provided by the Commission, NMFS, in consultation with JASCO and Ocean Wind, have opted to
  allocate 10 percent of the authorized take by Level B harassment of the offshore stock of bottlenose dolphins
  to the coastal stock during WTG installation. No takes of Level A harassment has been authorized for either of
  these stocks.


     Table 20--Authorized Level A Harassment and Level B Harassment Take Resulting From Impact Pile Driving
         Associated With OSS 2.44-m Jacket Foundation Using Pin Piles (48 Total Pin Piles) Over 5 Years
----------------------------------------------------------------------------------------------------------------
                                                                                    Authorized      Authorized
                      Marine mammal species                         Population        Level A         Level B
                                                                     estimate       harassment      harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..................................             338               0               1
Blue whale \a\..................................................         Unknown               0               0
Fin whale \a\...................................................           6,802               0               2
Humpback whale..................................................           1,396           \c\ 2          \c\ 46
Minke whale.....................................................          21,968               3              16
Sei whale \a\...................................................           6,292               0               0
Sperm whale \a\.................................................           4,349               0           \b\ 3
Atlantic spotted dolphin........................................          39,921               0          \b\ 45
Atlantic white-sided dolphin....................................          93,233               0              17
Bottlenose dolphin (offshore stock).............................          62,851               0             169
Bottlenose dolphin (coastal stock)..............................           6,639               0               0
Common dolphin..................................................         172,974               0             294
Risso's dolphin.................................................          35,215               0          \b\ 30
Long-finned pilot whale.........................................          39,215               0          \b\ 10
Short-finned pilot whale........................................          28,924               0          \b\ 10
Harbor porpoise.................................................          95,543              17              71
Gray seal.......................................................          27,300               0              39
Harbor seal.....................................................          61,336               0             100
----------------------------------------------------------------------------------------------------------------
a--Listed as Endangered under the Endangered Species Act (ESA).
b--The authorized take for sei whales (Kenney and Vigness-Raposa, 2010), 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) was adjusted based on mean group size.
c--Based on a comment received from the Marine Mammal Commission, NMFS has increased the authorized take by
  Level A harassment for OSS impact installation from one to two (representing a single group size of 1.6
  animals based on AMAPPS data). For take by Level B harassment, NMFS has incorporated the Commission's
  suggestion of increasing the take to 46 instances, based on the group size seen in a previous monitoring
  report.

Temporary Cofferdam and Goal Post Installation and Removal
    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 did not propose to employ noise 
mitigation during vibratory piling and NMFS is not requiring it in the 
Mitigation section; therefore, no noise abatement was applied or 
assumed.
    To estimate the sound field to harassment isopleths generated 
during installation and removal of cofferdams and goal posts during 
vibratory pile driving, a practical spreading loss model was used. For 
cofferdams, a source level of 165 dB re 1 [micro]Pa was used (JASCO, 
2021). A lower source level (162 dB re 1 [micro]Pa) was used for the 
20-inch (50.8 centimeter (cm)) goal posts (based upon 18-inch (45.7 cm) 
piles from the Naval Facilities Engineering Systems Command (NAVFAC) 
mid-Atlantic (2019), as cited in 87 FR 78072). A transmission loss 
coefficient of 15logR (cylindrical spreading) was assumed for both 
cofferdams and goal posts. Ocean Wind did not separately analyze the 
removal of the cofferdams and goal posts using a vibratory extractor 
but has assumed that the removal would be acoustically comparable to 
the installation. Based on available pile-driving data presented from 
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 cofferdams and 
goal posts 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 cofferdams and goal posts 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 = [pi]r\2\,

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 harassment and Level B harassment threshold distances 
were mapped in a geospatial information system software (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 cofferdams and 
goal posts installation and removal. These results are shown in Table 
21.

[[Page 62941]]



   Table 21--Areas Calculated for the Maximum Level A Harassment and Level B Harassment Threshold Distances for Vibratory Installation and Removal of
                                                                Cofferdams and Goal Posts
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Area of level A harassment zone (km\2\)
                                                              ------------------------------------------------------------------------  Area of level B
               Cofferdam and goal post location                  Low-frequency     Mid-frequency    High-frequency                      harassment zone
                                                                   cetaceans         cetaceans         cetaceans          Phocids           (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Temporary Goal Posts
--------------------------------------------------------------------------------------------------------------------------------------------------------
IBSP Atlantic HDD............................................            <0.001            <0.001            <0.001           <0.0001              66.18
BL England HDD...............................................            <0.001            <0.001            <0.001           <0.0001              65.05
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Temporary Cofferdams
--------------------------------------------------------------------------------------------------------------------------------------------------------
Oyster Creek HDD.............................................             0.024           <0.0001             0.052             0.009              77.01
IBSP Barnegat Bay HDD........................................             0.024           <0.0001             0.052             0.009              76.70
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 8) were then multiplied by the 
estimated Level A harassment and Level B harassment areas (in km\2\) 
and the expected durations for each component of the cofferdam and goal 
post process (i.e., installation and removal). Finally, the resulting 
value was multiplied by the number of activity days. It was 
conservatively estimated that temporary cofferdams would require 4 days 
to install and remove (2 days for each activity). For goal posts, it 
was estimated that installation and removal would occur over 6 days, 
assuming 3 days for installation and 3 days for removal at a rate of 1 
hour daily (30 minutes for each pile at a rate of two piles per day).
    As previously stated, Ocean Wind anticipates that cofferdam and 
goal post installation and removal would occur only during Year 1 of 
the construction activities, specifically from October through March, 
although a small number of cofferdams and goal post removals could 
occur in Year 2 during April or May, but it is not expected.

[[Page 62942]]



                  Table 22--Estimated Level B Harassment Exposures by Month From Vibratory Pile Installation and Removal Related to Cofferdams (and Goal Posts in Parenthesis)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Population                                                                                                                                        Average
      Marine mammal species          estimate         January        February          March           April            May           October        November        December      Exposures \c\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..             338            2.08            1.71            0.97            0.55            0.13            0.09            0.41            1.20            0.89
                                                          (1.60)          (1.31)          (0.74)          (0.42)          (0.10)          (0.07)          (0.31)          (0.92)          (0.68)
Blue whale \a\..................     \b\ Unknown            0.02            0.02            0.02            0.02            0.02            0.02            0.02            0.02            0.02
                                                          (0.02)          (0.02)          (0.02)          (0.02)          (0.02)          (0.02)          (0.02)          (0.02)          (0.02)
Fin whale \a\...................           6,802            2.21            0.65            1.30            1.64            0.57            0.54            0.55            2.56            1.25
                                                          (1.69)          (0.50)          (1.00)          (1.26)          (0.44)          (0.41)          (0.42)          (1.96)          (0.96)
Humpback whale..................           1,396            2.25            1.51            2.28            1.56            0.83            0.90            2.13            4.26            1.96
                                                          (1.73)          (1.16)          (1.75)          (1.20)          (0.64)          (0.69)          (1.6)3          (3.27)          (1.51)
Minke whale.....................          21,968            0.42            0.48            0.68            9.40            7.42            0.94            0.12            0.28            2.47
                                                          (0.32)          (0.37)          (0.52)          (7.21)          (5.69)          (0.72)          (0.09)          (0.21)          (1.89)
Sei whale \a\...................           6,292            0.40            0.26            0.48            0.61            0.29            0.09            0.44            0.91            0.44
                                                          (0.31)          (0.20)          (0.37)          (0.47)          (0.22)          (0.07)          (0.34)          (0.70)          (0.33)
Sperm whale \a\.................           4,349            0.03            0.04            0.02            0.06            0.08            0.00            0.15            0.09            0.06
                                                          (0.02)          (0.03)          (0.01)          (0.04)          (0.06)          (0.00)          (0.12)          (0.07)          (0.04)
Atlantic spotted dolphin........          39,921             n/a             n/a             n/a             n/a             n/a             n/a             n/a             n/a             n/a
                                                           (n/a)           (n/a)           (n/a)           (n/a)           (n/a)           (n/a)           (n/a)           (n/a)           (n/a)
Atlantic white-sided dolphin....          93,233            1.49            0.96            1.47            3.84            2.11            1.91            4.06            3.76            2.45
                                                          (1.14)          (0.73)          (1.12)          (2.95)          (1.62)          (1.47)          (3.11)          (2.88)          (1.88)
Bottlenose dolphin (offshore              62,851          120.06           38.12           60.99          260.70          653.27        1,019.85         951.596          670.22          471.85
 stock).........................                         (92.10)         (29.24)         (46.79)        (199.98)        (501.10)        (782.31)        (729.94)        (514.11)        (361.94)
Bottlenose dolphin (coastal                6,639          161.51           61.44          137.20          696.39        1,745.23        2,378.69        1,988.58        1,076.10        1,030.64
 stock).........................                        (123.89)         (47.13)        (105.24)        (534.19)      (1,338.72)      (1,824.63)      (1,525.39)        (825.45)        (790.58)
Common dolphin..................         172,974            7.05            3.05            5.43           13.05            8.91            6.24           36.20           24.03           12.99
                                                          (5.41)          (2.34)          (4.17)         (10.01)          (6.84)          (4.79)         (27.77)         (18.43)          (9.97)
Long-finned pilot whale.........          39,215             0.1            0.01             0.1             0.1             0.1             0.1             0.1             0.1             0.1
                                                           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)
Short-finned pilot whale........          28,924             0.0             0.0             0.0             0.0             0.0             0.0             0.0             0.0             0.0
                                                           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)           (0.0)
Risso's dolphin.................          35,215            0.01            0.00            0.00            0.03            0.02            0.02            0.11            0.21            0.05
                                                          (0.01)          (0.00)          (0.00)          (0.02)          (0.02)          (0.01)          (0.09)          (0.16)          (0.04)
Harbor porpoise.................          95,543           39.03           34.32           39.17           51.95           10.28            0.18            0.69           41.18           27.10
                                                         (29.94)         (26.33)         (30.04)         (39.85)          (7.89)          (0.14)          (0.53)         (31.59)         (20.79)
Gray seal.......................          27,300          102.96           73.31           81.20          131.83           84.76          126.98          182.25          131.44          114.34
                                                         (78.98)         (56.24)         (62.29)        (101.12)         (65.02)         (97.40)        (139.80)        (100.83)         (87.71)
Harbor seal.....................          61,336          287.77          294.92          226.96          368.48          236.92          354.92          509.40          367.39          319.59
                                                        (220.74)        (157.19)        (174.09)        (282.65)        (181.73)        (272.25)        (390.75)        (281.82)        (245.15)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The values for goal posts are presented in parenthesis.
\a\--Listed as Endangered under the Endangered Species Act (ESA).
\b\--The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our analysis.
\c\--The average exposure values were calculated using the October--May columns.


[[Page 62943]]

    For Level A harassment from goal post installation, the monthly 
exposures were less than 0.01 for all species (see Table 6-9 in the 
Cofferdam Change Memo). For cofferdams, the Level A harassment was less 
than 0.01 for all species except harbor porpoise and harbor seals, 
which had 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 the Level B harassment for cofferdams and goal 
posts, this yielded the exposure estimates found in Table 22. Because 
of this, Ocean Wind anticipates and NMFS has only authorized Level B 
harassment from vibratory installation and removal of the cofferdams 
and goal posts. However, at request of Ocean Wind, some Level A 
harassment takes of the coastal stock of bottlenose dolphins and both 
species of phocids have been authorized given the coastal location that 
these activities.
    From the exposures calculated shown in Table 22, Ocean Wind 
utilized the average monthly value from October through May in their 
take request, which are shown in Table 23. 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 for authorization given the species potential occurrence in 
the area.

    Table 23--Authorized Level A Harassment and Level B Harassment Take Resulting From Vibratory Pile Driving
        Associated With the Installation and Removal of Temporary Cofferdams and Goal Posts Over 5 Years
----------------------------------------------------------------------------------------------------------------
                                                                                    Authorized      Authorized
                      Marine mammal species                         Population        level A         level B
                                                                     estimate       harassment      harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..................................             338               0               1
Blue whale \a\..................................................         Unknown               0               0
Fin whale \a\...................................................           6,802               0               1
Humpback whale..................................................           1,396               0               2
Minke whale.....................................................          21,968               0               2
Sei whale \a\...................................................           6,292               0               1
Sperm whale \a\.................................................           4,349               0               0
Atlantic spotted dolphin........................................          39,921               0          \b\ 45
Atlantic white-sided dolphin....................................          93,233               0          \g\ 12
Bottlenose dolphin (offshore stock).............................          62,851               0             362
Bottlenose dolphin (coastal stock) \f\..........................           6,639          \c\ 11             791
Common dolphin..................................................         172,974               0          \g\ 30
Long-finned pilot whale.........................................          39,215               0          \d\ 10
Short-finned pilot whale........................................          28,924               0          \d\ 10
Risso's dolphin.................................................          35,215               0          \d\ 30
Harbor porpoise.................................................          95,543               0              21
Gray seal.......................................................          27,300          \e\ 28              88
Harbor seal.....................................................          61,336          \e\ 28             246
----------------------------------------------------------------------------------------------------------------
\a\--Listed as Endangered under the Endangered Species Act (ESA).
\b\ --No Level B harassment exposures were estimated for Atlantic spotted dolphins, but NMFS has authorized a
  group size estimate of up to 45 Level B harassment takes.
\c\ --No Level A harassment exposures were estimated for bottlenose dolphins of the coastal stock, but NMFS has
  authorized a group size estimate of up to 11 Level A harassment takes.
\d\--Authorized takes by Level B harassment for pilot whales (short-finned and long-finned; Kenney and Vigness-
  Raposa, 2010) and Risso's dolphins (Barkaszi and Kelly, 2019) were adjusted to account for an average pod
  size.
\e\--No Level A harassment exposures were estimated for gray seals and harbor seals, but 28 Level A harassment
  takes have been authorized in the event up to 2 animals are taken during either removal or installation of
  cofferdam and goal posts due to the nearshore location of the cofferdams and goal posts and seal haul outs.
\f\--The estimate for coastal bottlenose dolphins (bayside versus Atlantic Ocean-facing) is likely an
  overestimate as this stock has demonstrated a preference for coastal environments as opposed to estuarine
  (Toth et al., 2011).
\g\--Based on a comment from the Marine Mammal Commission, NMFS has increased the take of common dolphins and
  Atlantic white-sided dolphins by a single group size using data from AMAPPS.

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 kg (5.1 pounds (lbs)), 9.1 kg (20.1 lbs), 45.5 kg (100.3 lbs), 227 
kg (500 lbs), and 454 kg (1,000.9 lbs), which is the largest charge the 
Navy considers for the purposes of its analyses (see the Description of 
the Specified Activities section in the proposed rule), 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 all UXO/
MEC charge weights. In the proposed rule, we only described the 
distances to thresholds for the largest E12 charge weight. However, as 
already described, Ocean Wind will be able to identify and mitigate at 
the relevant distances for each specific charge weight, so we have 
incorporated the maximum values for each size herein. 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 authorizing take by mortality or non-auditory 
injury. For this reason we are not presenting all

[[Page 62944]]

modeling results here; however, they can be found in Appendix C of the 
application.
    UXOs/MECs were modeled at the following locations, as they were 
determined to be representative of the environment in the Ocean Wind 
Project Area:
     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 the Project 
would be developed and making it an ideal as a proxy.
    Based on the depths within the ECR Area, 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, respectively) are applicable to the Lease 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 24 and 25. 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. JASCO has also 
presented the results for both mitigated and unmitigated scenarios in 
the ITA application; however, Ocean Wind has committed to the use of a 
noise mitigation system during all detonations, and plans to use 
abatement systems capable of reducing noise by 10 dB. As a result, the 
August 2022 Revised Density and Take Estimate Memo carried forward only 
the mitigated UXO/MEC scenario and only the attenuated results, as 
presented in Tables 24 and 25, 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 concurs with Ocean Wind's analysis and does not 
expect or 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 is required to conduct extensive 
monitoring using both PSOs and PAM operators and clear an area of 
marine mammals prior to detonating any UXO/MEC. Given that Ocean Wind 
will 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 and mortality or non-auditory injury is 
considered not likely to occur.

[[Page 62945]]



                    Table 24--SEL-based R95% PTS-Onset Ranges, in Meters, From All Site Modeled During UXO/MEC Detonation by Charge Weight, Assuming 10-dB Sound Attenuation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                         2.3 kg (5.1 lbs)                9.1 kg (20.1 lbs)              45.5 kg (100.3 lbs)              227 kg (500 lbs)              454 kg (1,000.9 lbs)
   Marine mammal hearing group   ---------------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Rmax            R95%            Rmax            R95%            Rmax            R95%            Rmax            R95%            Rmax            R95%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LFC.............................             632             552           1,230             982           2,010           1,730           3,370           2,970           4,270           3,780
MFC.............................             <50             <50              79              75             175             156             419             337             535             461
HFC.............................           2,100           1,820           3,020           2,590           4,400           3,900           6,130           5,400           6,960           6,200
PP..............................             192             182             413             357             822             690           1,410           1,220           1,830           1,600
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds


                    Table 25--SEL-based R95% TTS-Onset Ranges, in Meters, From All Site Modeled During UXO/MEC Detonation by Charge Weight, Assuming 10-dB Sound Attenuation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                         2.3 kg (5.1 lbs)                9.1 kg (20.1 lbs)              45.5 kg (100.3 lbs)              227 kg (500 lbs)              454 kg (1,000.9 lbs)
   Marine mammal hearing group   ---------------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Rmax            R95%            Rmax            R95%            Rmax            R95%            Rmax            R95%            Rmax            R95%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LFC.............................           3,140           2,820           5,230           4,680           8,160           7,490          11,700          10,500          13,500          11,900
MFC.............................             535             453             910             773           1,520           1,240           2,400           2,120           2,930           2,550
HFC.............................           6,920           6,160           8,970           8,000          11,300          10,300          14,600          12,900          15,600          14,100
PP..............................           1,730           1,470           2,710           2,350           4,340           3,820           6,640           5,980           7,820           7,020
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds


[[Page 62946]]

    JASCO's take estimate analysis assumed that all 10 of the UXOs/MECs 
would be 454 kg in weight. Although Ocean Wind does not expect that all 
UXOs/MECs will 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 to 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 24 and 25 were 
multiplied by the highest monthly species density in the Lease 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 9 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 
respective species densities were then multiplied by the number of 
UXOs/MECs estimated at each of the depths (2 UXOs/MECs at 12 m, 3 UXOs/
MECs at 20 m, 3 UXOs/MECs at 30 m, and 2 UXOs/MECs at 40 m), for a 
total of 10 predicted UXOs/MECs. 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 double big 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 26. These results are found in 
Appendix C, Table 29, 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.

    Table 26--Estimated Potential Maximum PTS and TTS Exposures of Marine Mammals Resulting From the Possible
                     Detonations of Up to 10 UXOs/MECs, Assuming 10-dB of Sound Attenuation
----------------------------------------------------------------------------------------------------------------
                                                                                      Level A         Level B
                      Marine mammal species                         Population      harassment      harassment
                                                                     estimate        (PTS SEL)       (TTS SEL)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale a c..................................             338            0.03            0.35
Blue whale \a\..................................................     \b\ Unknown           <0.01            0.04
Fin whale \a\...................................................           6,802            0.28            2.87
Humpback whale..................................................           1,396            0.33            3.41
Minke whale.....................................................          21,968            2.53           26.42
Sei whale \a\...................................................           6,292            0.08            0.87
Sperm whale \a\.................................................           4,349           <0.01            0.01
Atlantic spotted dolphin........................................          39,921             n/a             n/a
Atlantic white-sided dolphin....................................          93,233            0.03            1.05
Bottlenose dolphin (offshore stock).............................          62,851            0.68           24.36
Bottlenose dolphin (coastal stock)..............................           6,639            3.84          137.31
Common dolphin..................................................         172,974            0.13            4.65
Long-finned pilot whale.........................................          28,924           <0.01            0.02
Short-finned pilot whale........................................          39,215           <0.01            0.02
Risso's dolphin.................................................          35,215           <0.01            0.04
Harbor porpoise.................................................          95,543            9.49           46.50
Gray seal.......................................................          27,300            2.28           50.98
Harbor seal.....................................................          61,336            6.39          142.49
----------------------------------------------------------------------------------------------------------------
\a\--Listed as Endangered under the Endangered Species Act (ESA).
\b\--The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is
  utilizing this value for our small numbers determination, as shown in parenthesis.
\c\--Level A harassment exposures were estimated for this species, but due to mitigation measures outlined in
  Section 11, no Level A harassment takes are expected or have been authorized. See Section 6.2.3 of the ITA
  application for more information.

    Table 27 presents the attenuated (10-dB) authorized take that 
exceeds the PTS and TTS thresholds. 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 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 (refer 
to Table 6-20 in the memo).

 Table 27--Authorized Level A Harassment and Level B Harassment Takes Resulting From the Detonation of Up to 10
                             UXOs, Assuming 10-dB of Sound Attenuation, Over 5 Years
----------------------------------------------------------------------------------------------------------------
                                                                                    Authorized      Authorized
                      Marine mammal species                         Population        Level A         Level B
                                                                     estimate       harassment      harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..................................             338               0               1
Blue whale \a\..................................................     \d\ Unknown               0               0
Fin whale \a\...................................................           6,802               0               3

[[Page 62947]]

 
Humpback whale..................................................           1,396               0               4
Minke whale.....................................................          21,968           b e 2              27
Sei whale \a\...................................................           6,292               0               1
Sperm whale \a\.................................................           4,349               0           \c\ 3
Atlantic spotted dolphin........................................          39,921               0          \c\ 45
Atlantic white-sided dolphin....................................          93,233               0               2
Bottlenose dolphin (offshore stock).............................          62,851          b e 11              25
Bottlenose dolphin (coastal stock)..............................           6,639          b e 11             138
Common dolphin..................................................         172,974               0               5
Long-finned pilot whale.........................................          39,215               0          \c\ 10
Short-finned pilot whale........................................          28,924               0          \c\ 10
Risso's dolphin.................................................          35,215               0          \c\ 30
Harbor porpoise.................................................          95,543              10              47
Gray seal.......................................................          27,300               3              51
Harbor seal.....................................................          61,336               7             143
----------------------------------------------------------------------------------------------------------------
\a\--Listed as Endangered under the Endangered Species Act (ESA).
\b\--A small amount of Level A harassment exposures were estimated based on the density calculations, but no
  Level A harassment take was requested for authorization due to the mitigation measures Ocean Wind would be
  required to implement.
\c\--The authorized take for the sperm whale (Barkaszi and Kelly, 2019), the Atlantic spotted dolphin (Kenny and
  Vigness-Raposa, 2010), both pilot whale species (Kenny and Vigness-Raposa, 2010), and the Risso's dolphins
  (Barkaszi and Kelly, 2019) were adjusted based on mean group size.
\d\--The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is
  utilizing this value for our small numbers determination, as shown in parenthesis.
\e\--Based on a comment received by the Marine Mammal Commission during the public comment period, NMFS has
  increased the authorized take for minke whales, based on a single group size from the AMAPPS dataset, and
  bottlenose dolphins (both stocks) to a single group size using a group size data from Ocean Wind.

    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 Project activities 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.
    Due to mitigation measures that are required to be implemented 
during any UXO/MEC detonations, the likelihood of Level A harassment 
and some Level B harassment for some species was reduced. However, 
there is still potential for Level A harassment 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 source level (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 28 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

[[Page 62948]]

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.

                                           Table 28--Summary of Representative HRG Equipment That May Be Used
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Pulse
                                  Representative HRG   Operating    SLrms (dB    SL0-pk (dB     duration     Repetition   Beamwidth    CF = Crocker and
         Equipment type                equipment       frequency   re 1 [mu]Pa  re 1 [mu]Pa     (width)      rate (Hz)    (degrees)   Fratantonio (2016)
                                                                        m)           m)      (millisecond)                            MAN = manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Non-parametric shallow penetration SPBs (non-impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sub-bottom Profiler.............  ET 216 (2000DS or          2-16          195            -            20             6           24  MAN
                                   3200 top unit).            2-8
                                  ET 424............         4-24          176            -           3.4             2           71  CF
                                  ET 512............       0.7-12          179            -             9             8           80  CF
                                  GeoPulse 5430A....         2-17          196            -            50            10           55  MAN
                                  Teledyne Benthos            7-2          197            -            60            15          100  MAN
                                   Chirp III--TTV
                                   170.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Medium penetration SBPs (impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker.........................  AA, Dura-spark          0.3-1.2          203          211           1.1             4         Omni  CF
                                   (400 tips, 500J)
                                   \a\.
                                  AA, triple plate S-       0.1-5          205          211           0.6             4           80  CF
                                   Boom (700-1,000J)
                                   \b\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
- = not applicable; ET = EdgeTech; J = joule; kHz = kilohertz; dB = decibels; SL = source level; UHD = ultra-high definition; AA = Applied Acoustics;
  rms = root-mean square; [micro]Pa = microPascal; re = referenced to; SPL = sound pressure level; PK = zero-to-peak pressure level; Omni =
  omnidirectional source.
Notes: All source information that was used to calculate threshold isopleths are provided in Table 1.
a The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  These include 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.
b 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-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 SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.

    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 29). The lowest 
frequency of the source was used when calculating the absorption 
coefficient.

  Table 29--Distance to Weighted Level A Harassment and Level B Harassment Thresholds for Each HRG Sound Source or Comparable Sound Source Category for
                                                            Each Marine Mammal Hearing Group
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Distance to Level A harassment threshold (m)              Distance to
                                                                      ---------------------------------------------------------------------    Level B
                                                                                                                                             harassment
                                                                           Low-          Mid-          High-        High-                     threshold
             Equipment type                       HRG sources            frequency     frequency     frequency    frequency      Phocids         (m)
                                                                         cetaceans     cetaceans     cetaceans    cetaceans     (SELCUM)   -------------
                                                                         (SELCUM)      (SELCUM)      (SELCUM)     (SPL0-PK)                 All (SPLrms)
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Non-impulsive, non-parametric, shallow SBP (CHIRPs)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sub-bottom Profilers (SBP; Compressed     EdgeTech 216...............            <1            <1           2.9          n/a             0             9
 High Intensity Radiated Pulse (CHIRPs)). EdgeTech 424...............             0             0             0          n/a             0             4
                                          EdgeTech 512i..............             0             0            <1          n/a             0             6
                                          GeoPulse 5430..............            <1            <1          36.5          n/a            <1            21

[[Page 62949]]

 
                                          Teledyn Benthos Chirp III--           1.5            <1          16.9          n/a            <1            48
                                           TTV 170.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Impulsive, medium SBP (Boomers and Sparkers)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Boomer..................................  AA Triple plate S-Boom (700/           <1             0             0          4.7            <1            34
                                           1,000 J).
Sparker.................................  AA Dura-spark UHD (500 J/              <1             0             0          2.8            <1           141
                                           400 tip).
                                          AA Dura-spark UHD 400+400..            <1             0             0          2.8            <1           141
                                          GeoMarine Geo-Source dual              <1             0             0          2.8            <1           141
                                           400 tip sparker.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 kn 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 harassment and Level B harassment areas were calculated for 
each source based on the threshold distances, assuming a 70-km 
operational period (Table 30).

Table 30--Calculated Areas (Distances in Parenthesis) Encompassing the Level A Harassment and Level B Harassment
                                Thresholds \a\ for Representative Acoustic Source
----------------------------------------------------------------------------------------------------------------
                                       Level A harassment isopleth area (in km\2\) and distance (m)    Level B
                                                                   \b\                                Harassment
                                     ---------------------------------------------------------------   isopleth
                                                                                                       area (in
                                                                                                      km\2\) and
                                                                                                       distance
           Acoustic source                Low-         Mid-        High-                               (m) \c\
                                       frequency    frequency    frequency           Phocids        ------------
                                       cetaceans    cetaceans    cetaceans                            All Marine
                                                                                                        mammal
                                                                                                       hearing
                                                                                                        groups
----------------------------------------------------------------------------------------------------------------
                               Non-impulsive, non-parametric, shallow SBP (CHIRPs)
----------------------------------------------------------------------------------------------------------------
ET 216 CHIRP........................       0 (<1)       0 (<1)    0.4 (2.9)  0 (0).................      1.3 (9)
ET 424 CHIRP........................        0 (0)        0 (0)        0 (0)  0 (0).................      0.6 (4)
ET 512i CHIRP.......................        0 (0)        0 (0)       0 (<1)  0 (<1)................     0.8 (21)
GeoPulse 5430.......................       0 (<1)     0.1 (<1)   5.1 (36.5)  0 (<1)................     2.9 (21)
TB CHIRP III........................    0.2 (1.5)       0 (<1)   2.4 (16.9)  0.1 (<1)..............     6.7 (48)
----------------------------------------------------------------------------------------------------------------
                                  Impulsive, medium SBP (Boomers and Sparkers)
----------------------------------------------------------------------------------------------------------------
AA Triple plate S-Boom (700-1,000 J)     0.1 (<1)        0 (0)      0.7 (0)  0 (SELCUM: 0; SPL0-PK:     4.8 (34)
                                                                              4.7).
AA, Dura-spark UHD..................     0.1 (<1)        0 (0)      0.4 (0)  0 (SELCUM: 0; SPL0-PK:   19.8 (141)
                                                                              2.8).
----------------------------------------------------------------------------------------------------------------
a The Level A harassment and B harassment isopleths were calculated to comprehensively assess the potential
  impacts of the predicted source operations as required for the ITA application (Ocean Wind, 2022b). As
  described in the ITA application, minimal Level A harassment takes are expected and were included.
b Based on maximum distances in Table 1-30 of the ITA application (Ocean Wind, 2022b). For consistency, the
  metric producing the largest distance to the Level A harassment thresholds (either cumulative sound exposure
  level or zero to peak sound pressure level) was used to calculate the areas for each hearing group.
c Based on maximum distances in Table 1-30 of the ITA application calculated for Level B harassment root-mean-
  square sound pressure level thresholds (Ocean Wind, 2022b).

    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 30). 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 were very small (<1 m (<3.3 ft)) for three of the 
four marine mammal functional hearing groups that may be impacted by 
the planned activities (i.e., low frequency

[[Page 62950]]

and mid frequency cetaceans, and phocids). The largest distance to the 
Level A harassment isopleth is 36.5 m (119.8 ft), 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.
    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 annual survey days (Years 1, 4, 5 = 88 days; Years 2, 3 = 
180 days) and then by the area ensonified per day (70 km multiplied by 
the areas found in Table 30). 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 harassment and B 
harassment exposures of marine mammals resulting from HRG survey 
activities are shown in Table 31.

  Table 31--Calculated Annual Maximum Level A Harassment and B Harassment Exposures of Marine Mammals Resulting
                                         From Annual Days of HRG Surveys
----------------------------------------------------------------------------------------------------------------
                                                                               Estimated Level   Estimated Level
                                                                                A harassment      B harassment
                                                                                exposures \b\       exposures
                                                                             -----------------------------------
           Marine mammal species                   Population estimate         Years             Years
                                                                               1, 4,   Years 2   1, 4,   Years 2
                                                                               and 5    and 3    and 5    and 3
                                                                                (88      (180     (88      (180
                                                                               days)    days)    days)    days)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\............  338.............................    <0.01     0.01     0.46     0.94
Blue whale \a\............................  Unknown.........................    <0.01    <0.01     0.02     0.03
Fin whale \a\.............................  6,802...........................     0.01     0.02     1.24     2.56
Humpback whale............................  1,396...........................     0.01     0.02     1.10     2.27
Minke whale...............................  21,968..........................     0.02     0.04     2.40     4.98
Sei whale \a\.............................  6,292...........................    <0.01    <0.01     0.33     0.68
Sperm whale \a\...........................  4,349...........................    <0.01    <0.01     0.04     0.09
Atlantic spotted dolphin..................  39,921..........................      n/a      n/a      n/a      n/a
Atlantic white-sided dolphin..............  93,233..........................     0.03     0.05     4.79    10.04
Bottlenose dolphin (offshore stock).......  62,851..........................     1.23     2.46   173.84   348.37
Bottlenose dolphin (coastal stock)........  6,639...........................     3.28     6.60   464.18   933.46
Common dolphin............................  172,974.........................     0.20     0.42    28.38    59.52
Long-finned pilot whales..................  28,924..........................    <0.01    <0.01     0.19     0.40
Short-finned pilot whales.................  39,215..........................    <0.01    <0.01     0.14     0.29
Risso's dolphin...........................  35,215..........................    <0.01    <0.01     0.31     0.65
Harbor porpoise...........................  95,543..........................     5.60    11.59    21.69    44.88
Gray seal.................................  27,300..........................     0.23     0.48    33.23    67.56
Harbor seal...............................  61,336..........................     0.66     1.34    92.88   188.83
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the Endangered Species Act (ESA).
\b\ Some Level A harassment exposures were estimated to occur during HRG surveys, but due to the required
  mitigation measures Ocean Wind would be required to undertake, no Level A harassment takes has been
  authorized.

    NMFS reiterates that authorized takes will 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 planned for use, Level A 
harassment is neither anticipated (even absent mitigation), nor 
authorized. Consideration of the anticipated effectiveness of the 
measures (i.e., exclusion zones and shutdown measures), discussed in 
detail below in the 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 authorized by NMFS. As described previously, no serious 
injury or mortality is anticipated or authorized for this activity.
    The authorized 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 32 below represent HRG surveys occurring 
during the pre- and post-construction phases of the 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 the Project. 
Each of these years is based on an annual HRG survey effort of 180 days 
(360 days total over 2 years).

[[Page 62951]]



 Table 32--Annual Authorized Level A Harassment and Level B Harassment Take Resulting From High-Resolution (HRG)
                                   Site Characterization Surveys Over 5 Years
----------------------------------------------------------------------------------------------------------------
                                                                   Pre- and post-          During construction
                                                                 construction phases      phase (years 2 and 3;
                                                               (years 1, 4, 5; 88 days     180 days annually)
                                                                      annually)        -------------------------
       Marine mammal species           Population estimate   --------------------------
                                                               Authorized   Authorized   Authorized   Authorized
                                                                Level B      Level A      Level A      Level B
                                                               harassment   harassment   harassment   harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\....  338.....................            0        \d\ 1            0        \d\ 2
Blue whale \a\....................  Unknown.................            0            0            0            0
Fin whale \a\.....................  6,802...................            0            2            0            3
Humpback whale....................  1,396...................            0        \b\ 2            0        \b\ 3
Minke whale.......................  21,968..................            0        \b\ 3            0        \b\ 5
Sei whale \a\.....................  6,292...................            0        \b\ 0            0        \b\ 1
Sperm whale \a\...................  4,349...................            0        \b\ 3            0        \b\ 3
Atlantic spotted dolphin..........  39,921..................            0       \b\ 45            0       \b\ 45
Atlantic white-sided dolphin......  93,233..................            0            5            0           11
Bottlenose dolphin (offshore        62,851..................        \c\ 0          173        \c\ 0          349
 stock).
Bottlenose dolphin (coastal stock)  6,639...................        \c\ 0          465        \c\ 0          934
Common dolphin....................  172,974.................            0           29            0           60
Long-finned pilot whale...........  39,215..................            0       \b\ 10            0       \b\ 10
Short-finned pilot whale..........  28,924..................            0       \b\ 10            0       \b\ 10
Risso's dolphin...................  35,215..................            0       \b\ 30            0       \b\ 30
Harbor porpoise...................  95,543..................        \c\ 0           22        \c\ 0           45
Gray seal.........................  27,300..................        \c\ 0           34        \c\ 0           68
Harbor seal.......................  61,336..................        \c\ 0           93        \c\ 0          189
----------------------------------------------------------------------------------------------------------------
a Listed as Endangered under the Endangered Species Act (ESA).
b The following species' requested take was a adjusted based on mean group size: Sei whale (Kenney and Vigness-
  Raposa, 2010), minke whale (Kenney and Vigness-Raposa, 2010), humpback whale (CeTAP, 1982), sperm whale
  (Barkaszi and Kelly, 2019), Atlantic spotted dolphin (Kenney and Vigness-Raposa, 2010), both species of pilot
  whale (Kenney and Vigness-Raposa, 2010), and Risso's dolphin (Barkaszi and Kelly, 2019).
c A small amount of Level A harassment exposures were estimated based on the density calculations, but no Level
  A harassment take was requested by Ocean Wind or authorized by NMFS due to the mitigation measures planned for
  use.
d Based on the exposure estimates, values greater than 0.5 for all other species besides North Atlantic right
  whale were rounded up to one. Take estimates for North Atlantic right whales from 0.45 and up were rounded up
  to one (to be conservative) and 0.93 was rounded to two.

Total Authorized Takes Across All Activity Types
    NMFS is authorizing take by Level A harassment and Level B 
harassment incidental to all Project activities combined (i.e., impact 
pile driving to install WTG and OSS monopile/pin pile foundations 
(assuming 10 dB of sound attenuation), vibratory pile driving to 
install and remove temporary cofferdams and goal posts, UXO/MEC 
detonations (assuming 10 dB of sound attenuation), and HRG surveys) as 
shown in Table 33. The annual amount of take that would occur in each 
year based on Ocean Wind's current schedules is provided in Table 34. 
The Year 1 take estimates include 88 days of HRG surveys, cofferdams 
and goal posts installation and 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 (noting that Ocean Wind will 
actually build out monopiles for OSS instead). Year 3 includes 180 days 
of HRG surveys only. And Years 4 and 5 include 88 days of HRG surveys. 
Although temporary cofferdam and goal post installation and removal 
could occur in Year 2, all of the authorized 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.
    The amount of take that NMFS authorized is considered conservative 
for several reasons. The authorized take numbers assume all piles are 
installed during 30 days of the highest density month and 19 days (38 
piles) of the second-highest density month for each species from May to 
December. The authorized take numbers for Level A harassment do not 
fully account for the likelihood that marine mammals would avoid a 
stimulus when possible before the individual accumulates enough 
acoustic energy to potentially cause auditory injury; nor do these 
numbers fully account for the effectiveness of the required mitigation 
measures, with the exception for foundation installation and UXO/MEC 
detonations, which accounted for 10 dB of sound attenuation. Finally, 
while Ocean Wind may use monopiles for OSS foundations, NMFS has used 
the pin pile take estimates in the total take authorized. The exposure 
estimates for pin piles is greater for all species than the exposures 
estimated for monopiles installation.
    If Ocean Wind decides to use suction-buckets or gravity-based 
foundations to install bottom-frame WTG and OSS foundations, take would 
not occur as noise levels would not be elevated to the degree there is 
a potential for take (i.e., no pile driving is involved with installing 
suction buckets or gravity-based foundations). The authorized take from 
vibratory pile driving assumed temporary cofferdams using sheet piles 
would be installed, versus the alternative installation of a gravity-
cell cofferdam, for which no take would be expected nor authorized.
    NMFS also presents the percentage of each marine mammal stock 
estimated to be taken based on the total amount of annual take, which 
is presented in Table 35. Table 34 provides the total authorized take 
from the entire 5-year effective period of the rulemaking and issued 
LOA. NMFS recognizes that schedules may shift due to a number of 
planning and logistical constraints such that take may be redistributed

[[Page 62952]]

throughout the 5 years. However, the 5-year total amount of take for 
each species, shown in Table 33, and the maximum amount of take in any 
1 year (Table 35) would not be exceeded. Additionally, to reduce 
impacts to marine mammals, NMFS has required several mitigation and 
monitoring measures, discussed in the Mitigation and Monitoring and 
Reporting sections, which are activity-specific and are designed to 
minimize acoustic exposures to marine mammal species.

                           Table 33--Level A Harassment and Level B Harassment Takes for All Activities Authorized During the Construction of the Ocean Wind 1 Project
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              2024--(Year 1)          2025--(Year 2)          2026--(Year 3)          2027--(Year 4)          2028--(Year 5)
                                                                         -----------------------------------------------------------------------------------------------------------------------
          Marine mammal species                 Population estimate         Level A     Level B     Level A     Level B     Level A     Level B     Level A     Level B     Level A     Level B
                                                                          harassment  harassment  harassment  harassment  harassment  harassment  harassment  harassment  harassment  harassment
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..........  338...........................          0           3           0           7           0           2           0           1           0           1
Blue whale \a\..........................  Unknown \b\...................          0           0           0           4           0           0           0           0           0           0
Fin whale \a\...........................  6,802.........................          0           6           4          13           0           3           0           2           0           2
Humpback whale..........................  1,396.........................          0           8       \e\ 7      \e\ 66           0           3           0           2           0           2
Minke whale.............................  21,968........................      \e\ 2          32          22          74           0           5           0           3           0           3
Sei whale \a\...........................  6,292.........................          0           2           1           3           0           1           0           0           0           0
Sperm whale \a\.........................  4,349.........................          0           6           0       \d\ 9           0           3           0           3           0           3
Atlantic spotted dolphin................  39,921........................          0         135           0         135           0          45           0          45           0          45
Atlantic white-sided dolphin............  93,233........................          0      \e\ 19           0         100           0          11           0           5           0           5
Common dolphin..........................  172, 974......................          0      \e\ 64           0       1,584           0          60           0          29           0          29
Bottlenose dolphin (offshore stock).....  62,851........................     \e\ 11         561           0   \f\ 1,360           0         349           0         174           0         174
Bottlenose dolphin (coastal stock) \c\..  6,639.........................     \e\ 22       1,394           0   \f\ 1,028           0         934           0         465           0         465
Short-finned pilot whale................  39,215........................          0          30           0          30           0          10           0          10           0          10
Long-finned pilot whale.................  28,924........................          0          30           0          30           0          10           0          10           0          10
Risso's dolphin.........................  35,215........................          0          90           0          90           0          30           0          30           0          30
Harbor porpoise.........................  95,543........................         10          90          69         350           0          45           0          22           0          22
Gray seal...............................  27,300........................         31         173           4         305           0          68           0          68           0          34
Harbor seal.............................  61,336........................         35         482          13         844           0         189           0          93           0          93
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the Endangered Species Act (ESA).
\b\ The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small numbers determination, as shown in parenthesis.
\c\ The estimate for coastal bottlenose dolphins (bayside versus Atlantic Ocean-facing) is likely an overestimate as this stock has demonstrated a preference for coastal environments as
  opposed to estuarine (Toth et al., 2011).
\d\ NMFS corrects a mathematical error for sperm whales where the value presented in this table was incorrectly labeled as six rather than nine for Year 2.
\e\ Corrections based on group size data were made for some species, based on comments received from the Marine Mammal Commission and/or using AMAPPS/Ocean Wind's group size data, which
  increased some of the take when compared to the proposed rule.
\f\ Based on a comment provided by the Commission, NMFS, in consultation with JASCO and Ocean Wind, have opted to allocate 10 percent of the authorized take by Level B harassment of the
  offshore stock of bottlenose dolphins to the coastal stock during WTG installation. No takes of Level A harassment has been authorized for either of these stocks.


  Table 34--Total 5-Year Authorized Takes (Level A Harassment and Level B Harassment) for All Activities During
                                  the Construction of the Ocean Wind 1 Project
----------------------------------------------------------------------------------------------------------------
                                                                              5-Year Project Duration \b\
                                                                      ------------------------------------------
         Marine mammal species                  Population size          Level A     Level B
                                                                       harassment  harassment     Total 5-year
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\.........  338.........................          0          14                  14
Blue whale \a\.........................  Unknown \c\.................          0           4                   4
Fin whale \a\..........................  6,802.......................          4          26                  30
Humpback whale.........................  1,396.......................      \f\ 7      \f\ 81               88\f\
Minke whale............................  21,968......................     \f\ 24         117             \f\ 141
Sei whale \a\..........................  6,292.......................          1           6                   7
Sperm whale \a\........................  4,349.......................          0      \e\ 24              \e\ 24
Atlantic spotted dolphin...............  39,921......................          0         405                 405
Atlantic white-sided dolphin...........  93,233......................          0     \f\ 140             \f\ 140
Bottlenose dolphin (offshore stock)....  62,851......................     \f\ 11   \g\ 2,618           \g\ 2,629
Bottlenose dolphin (coastal stock).....  6,639.......................     \f\ 22   \g\ 4,286   \d\ \f\ \g\ 4,308
Common dolphin.........................  172,974.....................          0   \f\ 1,766           \f\ 1,766
Long-finned pilot whale................  39,215......................          0          90                  90
Short-finned pilot whale...............  28,924......................          0          90                  90
Risso's dolphin........................  35,215......................          0         270                 270
Harbor porpoise........................  95,543......................         79         529                 608
Gray seal..............................  27,300......................         35         614                 649
Harbor seal............................  61,336......................         48       1,701               1,749
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the Endangered Species Act (ESA).
\b\ Activities include impact pile driving of WTG and OSS foundations (assuming mitigated by 10 dB), vibratory
  pile driving for the installation/removal of temporary cofferdam and goal posts, HRG surveys (year-round with
  variable levels of effort), and up to 10 high-order UXO/MEC detonations (assuming mitigated by 10 dB).
\c\ The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is
  utilizing this value for our small numbers determination, as shown in parenthesis.
\d\ The estimate for coastal bottlenose dolphins (bayside versus Atlantic Ocean-facing) is likely an
  overestimate as this stock has demonstrated a preference for coastal environments as opposed to estuarine
  (Toth et al., 2011).
\e\ NMFS corrects a mathematical error for sperm whales where the value presented in this table based on changes
  from Table 33.

[[Page 62953]]

 
\f\ Corrections based on group size data were made for some species, based on comments received from the Marine
  Mammal Commission and/or using AMAPPS/Ocean Wind's group size data, which increased some of the take when
  compared to the proposed rule.
\g\ Based on a comment provided by the Commission, NMFS, in consultation with JASCO and Ocean Wind, have opted
  to allocate 10 percent of the authorized take by Level B harassment of the offshore stock of bottlenose
  dolphins to the coastal stock during WTG installation. No takes of Level A harassment has been authorized for
  either of these stocks.

    In making the negligible impact determination and the necessary 
small numbers finding, NMFS assesses the greatest number of takes 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 35 in any year.

Table 35--Maximum Number of Authorized Takes (Level A Harassment and Level B Harassment) That Could Occur in Any
 One Year of the Project and the Total Percent Stock That Would Be Taken Based on the Maximum Annual Authorized
                                                      Take
----------------------------------------------------------------------------------------------------------------
                                                                             Max annual take
                                                     Max Level   Max Level     (Max level A      Total percent
    Marine mammal species        Population size         A           B       harassment + Max  stock taken based
                                                    harassment  harassment       Level B       on maximum annual
                                                                               harassment)          take \b\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale     338................          0           7                   7                2.1
 \a\.
Blue whale \a\...............  Unknown \c\........          0           4                   4               0.97
Fin whale \a\................  6,802..............          4          13                  17               0.25
Humpback whale...............  1,396..............      \f\ 8      \f\ 66              \f\ 74            \f\ 5.3
Minke whale..................  21,968.............         22          74                  96               0.44
Sei whale \a\................  6,292..............          1           3                   4               0.06
Sperm whale \a\..............  4,349..............          0       \e\ 9               \e\ 9           \e\ 0.21
Atlantic spotted dolphin.....  39,921.............          0         135                 135               0.34
Atlantic white-sided dolphin.  93,233.............          0         100                 100               0.11
Bottlenose dolphin (offshore   62,851.............     \f\ 11   \g\ 1,360      \g\ \f\ 1,3671       \g\ \f\ 2.17
 stock).
Bottlenose dolphin...........  6,639..............     \f\ 22       1,394           \f\ 1,416       \d\ \f\ 21.3
(coastal stock)..............
Common dolphin...............  172,974............          0       1,584               1,584               0.92
Long-finned pilot whale......  39,215.............          0          30                  30               0.08
Short-finned pilot whale.....  28,924.............          0          30                  30               0.10
Risso's dolphin..............  35,215.............          0          90                  90               0.26
Harbor porpoise..............  95,543.............         69         350                 419               0.44
Gray seal....................  27,300.............         31         305                 336               1.23
Harbor seal..................  61,336.............         35         844                 879               1.43
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the Endangered Species Act (ESA).
\b\ Calculations of percentage of stock taken are based on the maximum authorized Level A harassment take in any
  one year + the maximum authorized Level B harassment take in any one year and then compared against the best
  available abundance estimate as shown in Table 35. For this final rule, the best available abundance estimates
  are derived from the NMFS final 2022 Stock Assessment Reports.
\c\ The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is
  utilizing this value for our small numbers determination, as shown in parenthesis.
\d\ The estimate for coastal bottlenose dolphins (bayside versus Atlantic Ocean-facing) is likely an
  overestimate as this stock has demonstrated a preference for coastal environments as opposed to estuarine
  (Toth et al., 2011).
\e\ NMFS corrects a mathematical error for sperm whales in Table 33 where the value presented in this table has
  been updated from six to nine.
\f\ Corrections based on group size data were made for some species, based on comments received from the Marine
  Mammal Commission and/or using AMAPPS group size data, which increased some of the take when compared to the
  proposed rule.
\g\ Based on a comment provided by the Commission, NMFS, in consultation with JASCO and Ocean Wind, have opted
  to allocate 10 percent of the authorized take by Level B harassment of the offshore stock of bottlenose
  dolphins to the coastal stock during WTG installation. No takes of Level A harassment has been authorized for
  either of these stocks.

Mitigation

    As noted in the Changes From the Proposed to Final Rule section, 
NMFS has added several new mitigation requirements and clarified a few 
others, has increased the winter clearance zones for large whales and 
harbor porpoises, and has removed the PAM clearance zone and PAM 
shutdown zone for North Atlantic right whales and added a single PAM 
monitoring zone (10 km) for all species (see Table 36) for clarity and 
to be consistent with the regulatory text in the proposed rule and in 
this final rule. Additionally, NMFS has clarified that the shutdown and 
clearance zones in Table 36 apply to both visual and auditory 
detection, and these changes are described in detail in the sections 
below. Other than the changes described, the required measures remain 
the same as those described in the proposed rule. However, NMFS has 
also re-organized and simplified the section to avoid full duplication 
of the specific requirements that are fully described in the regulatory 
text.
    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 adverse impact on the species or stock and its habitat, 
paying particular attention to

[[Page 62954]]

rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS' 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and,
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous incidental take 
authorizations issued in association with in-water construction 
activities (e.g., soft-start, establishing shutdown zones). Additional 
measures have also been incorporated to account for the fact that the 
proposed construction activities would occur offshore. Modeling was 
performed to estimate harassment zones, which were used to inform 
mitigation measures for the project's activities to minimize Level A 
harassment and Level B harassment to the extent practicable, while 
providing estimates of the areas within which Level B harassment might 
occur.
    Generally speaking, the mitigation measures considered and required 
here fall into three categories: temporal (seasonal and daily) work 
restrictions, real-time measures (shutdown, clearance, and vessel 
strike avoidance), and noise attenuation/reduction measures. Seasonal 
work restrictions are designed to avoid or minimize operations when 
marine mammals are concentrated or engaged in behaviors that make them 
more susceptible or make impacts more likely, in order to reduce both 
the number and severity of potential takes, and are effective in 
reducing both chronic (longer-term) and acute effects. Real-time 
measures, such as implementation of shutdown and clearance zones, as 
well as vessel strike avoidance measures, are intended to reduce the 
probability or severity of harassment by taking steps in real time once 
a higher-risk scenario is identified (e.g., once animals are detected 
within an impact zone). Noise attenuation measures, such as bubble 
curtains, are intended to reduce the noise at the source, which reduces 
both acute impacts, as well as the contribution to aggregate and 
cumulative noise that may result in longer-term chronic impacts.
    Below, we briefly describe the required training, coordination, and 
vessel strike avoidance measures that apply to all activity types, and 
then in the following subsections we describe the measures that apply 
specifically to foundation installation, nearshore installation and 
removal activities for cable laying, HRG surveys, and UXO/MEC 
detonation. Details on specific requirements can be found in Part 217--
Regulations Governing The Taking And Importing Of Marine Mammals at the 
end of this rulemaking.

Training and Coordination

    NMFS requires all Ocean Wind employees and contractors conducting 
activities on the water, including, but not limited to, all vessel 
captains and crew are trained in marine mammal detection and 
identification, communication protocols, and all required measures to 
minimize impacts on marine mammals and support Ocean Wind's compliance 
with the LOA, if issued. Additionally, all relevant personnel and the 
marine mammal species monitoring team(s) are required to participate in 
joint, onboard briefings prior to the beginning of project activities. 
The briefing must be repeated whenever new relevant personnel (e.g., 
new PSOs, construction contractors, relevant crew) join the project 
before work commences. During this training, Ocean Wind is required to 
instruct all project personnel regarding the authority of the marine 
mammal monitoring team(s). For example, the HRG acoustic equipment 
operator, pile driving personnel, etc., is required to immediately 
comply with any call for a delay or shut down by the Lead PSO. Any 
disagreement between the Lead PSO and the project personnel must only 
be discussed after delay or shutdown has occurred. In particular, all 
captains and vessel crew must be trained in marine mammal detection and 
vessel strike avoidance measures to ensure marine mammals are not 
struck by any project or project-related vessel.
    Prior to the start of in-water construction activities, vessel 
operators and crews would receive training about marine mammals and 
other protected species known or with the potential to occur in the 
Project Area, making observations in all weather conditions, and vessel 
strike avoidance measures. In addition, training would include 
information and resources available regarding applicable Federal laws 
and regulations for protected species. Ocean Wind will provide 
documentation of training to NMFS.

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 U.S. Coast Guard very 
high frequency (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.

Vessel Strike Avoidance Measures

    This final rule contains numerous vessel strike avoidance measures 
that reduce the risk that a vessel and marine mammal could collide. 
While the likelihood of a vessel strike is generally low, they are one 
of the most common ways that marine mammals are seriously injured or 
killed by human activities. Therefore, enhanced mitigation and 
monitoring measures are required to avoid vessel strikes to the extent 
practicable. While many of these measures are proactive intending to 
avoid the heavy use of vessels during

[[Page 62955]]

times when marine mammals of particular concern may be in the area, 
several are reactive and occur when a project personnel sights a marine 
mammal. The mitigation requirements are described generally here and in 
detail in the regulation text at the end of this final rule (see 50 CFR 
217.264(b)). Ocean Wind will be required to comply with these measures 
except under circumstances when doing so would create an imminent and 
serious threat to a person or vessel or to the extent that a vessel is 
unable to maneuver and because of the inability to maneuver, the vessel 
cannot comply.
    While underway, Ocean Wind is required to monitor for and maintain 
a minimum separation distance from marine mammals and operate vessels 
in a manner that reduces the potential for vessel strike. Regardless of 
the vessel's size, all vessel operators, crews, and dedicated visual 
observers (i.e., PSO or trained crew member) 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. The 
dedicated visual observer, equipped with suitable monitoring technology 
(e.g., binoculars, night vision devices), must be located at an 
appropriate vantage point for ensuring vessels are maintaining required 
vessel separation distances from marine mammals (e.g., 500 m from North 
Atlantic right whales).
    All project vessels, regardless of size, must maintain the 
following minimum separation zones: 500 m from North Atlantic right 
whales; 100 m from sperm whales and non-North Atlantic right whale 
baleen whales; and 50 m from all delphinid cetaceans and pinnipeds (an 
exception is made for those species that approach the vessel (i.e., 
bow-riding dolphins)). If any of these species are sighted within their 
respective minimum separation zone, the underway vessel must shift its 
engine to neutral and the engines must not be engaged until the 
animal(s) have been observed to be outside of the vessel's path and 
beyond the respective minimum separation zone. If a North Atlantic 
right whale is observed at any distance by any project personnel or 
acoustically detected, project vessels must reduce speeds to 10 kn. 
Additionally, in the event that any project-related vessel, regardless 
of size, observes any large whale (other than a North Atlantic right 
whale) within 500 m of an underway vessel, the vessel is required to 
immediately reduce speeds to 10 kn or less. The 10 kn speed restriction 
will remain in effect as outlined in 50 CFR 217.264(b).
    All of the project-related vessels are required to comply with 
existing NMFS vessel speed restrictions for North Atlantic right whales 
and the measures within this rulemaking for operating vessels around 
North Atlantic right whales and other marine mammals. When NMFS vessel 
speed restrictions are not in effect and a vessel is traveling at 
greater than 10 kn, in addition to the required dedicated visual 
observer, Ocean Wind is required to monitor the crew transfer vessel 
transit corridor (the path crew transfer vessels take from port to any 
work area) in real-time with PAM prior to and during transits. To 
maintain awareness of North Atlantic right whale presence, vessel 
operators, crew members, and the marine mammal monitoring team would 
monitor U.S. Coast Guard VHF Channel 16, WhaleAlert, the Right Whale 
Sighting Advisory System (RWSAS), and the PAM system. Any marine mammal 
observed by project personnel must be immediately communicated to any 
on-duty PSOs, PAM operator(s), and all vessel captains. Any North 
Atlantic right whale or large whale observation or acoustic detection 
by PSOs or PAM operators must be conveyed to all vessel captains. All 
vessels would be equipped with an AIS and Ocean Wind must report all 
Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of 
Protected Resources prior to initiating in-water activities. Ocean Wind 
would submit a NMFS-approved North Atlantic Right Whale Vessel Strike 
Avoidance Plan at least 90 days prior to commencement of vessel use.
    Ocean Wind's compliance with these measures will reduce the 
likelihood of vessel strike to the extent practicable. These measures 
increase awareness of marine mammals in the vicinity of project vessels 
and require project vessels to reduce speed when marine mammals are 
detected (by PSOs, PAM, and/or through another source, e.g., RWSAS) and 
maintain separation distances when marine mammals are encountered. 
While visual monitoring is useful, reducing vessel speed is one of the 
most effective, feasible options available to reduce the likelihood of 
and effects from a vessel strike. Numerous studies have indicated that 
slowing the speed of vessels reduces the risk of lethal vessel 
collisions, particularly in areas where right whales are abundant and 
vessel traffic is common and otherwise traveling at high speeds 
(Vanderlaan and Taggart, 2007; Conn and Silber, 2013; Van der Hoop et 
al., 2014; Martin et al., 2015; Crum et al., 2019).

Seasonal and Daily Restrictions

    Temporal restrictions in places where marine mammals are 
concentrated, engaged in biologically important behaviors, and/or 
present in sensitive life stages are effective measures for reducing 
the magnitude and severity of human impacts. The temporal restrictions 
required here are built around North Atlantic right whale protection. 
Based upon the best scientific information available (Roberts et al., 
2023), the highest densities of North Atlantic right whales in the 
specified geographic region are expected during the months of January 
through April with an increase in density starting in December. 
However, North Atlantic right whales may be present in the specified 
geographic region throughout the year.
    NMFS is requiring seasonal work restrictions to minimize the risk 
of noise exposure to North Atlantic right whales incidental to certain 
specified activities to the extent practicable. These seasonal work 
restrictions are expected to greatly reduce the number of takes of 
North Atlantic right whales. These seasonal restrictions also afford 
protection to other marine mammals that are known to use the Project 
Area with greater frequency during winter months, including other 
baleen whales.
    As described previously, no impact pile driving activities may 
occur January 1 through April 30. A new measure included in this final 
rule requires that Ocean Wind install the foundations as quickly as 
possible and avoid pile driving in December to the maximum extent 
practicable; however, pile driving may occur in December if it is 
unavoidable upon approval from NMFS. Ocean Wind has planned to 
construct the cofferdams and goal posts from October to May within the 
first year of the effective period of the regulations and LOA, with 
some potential removal occurring in April or May, if necessary. 
However, NMFS is not requiring any seasonal restrictions due to the 
relatively short duration of work and low associated impacts to marine 
mammals. 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 cofferdams and goal posts installation would be at levels closer 
to the 120-dB Level B harassment threshold and not at louder source 
levels. There is no specific time

[[Page 62956]]

of year that UXOs/MECs would be detonated as detonations would be 
considered on a case-by-case basis. However, Ocean Wind will be 
restricted from detonating UXO/MECs November 1 through April 30 to 
reduce impacts to North Atlantic right whales during peak migratory 
periods. NMFS is not adding seasonal restrictions to HRG surveys; 
however, Ocean Wind would only perform a predetermined amount of 24-
hour survey days within specific years (Years 1, 4, 5 = 88 days; Years 
2, 3 = 180 days).
    NMFS is also requiring temporal restrictions for some activities. 
Within any 24-hour period, Ocean Wind would be limited to installing up 
to 2 monopile foundations. Ocean Wind had requested to initiate pile 
driving during nighttime when detection of marine mammals is visually 
challenging. Since the publication of the proposed rule, Ocean Wind has 
continued conversations with NMFS and BOEM regarding field trials they 
have been performing to prove the efficacy of their nighttime 
monitoring methods and systems. These field trials have provided 
information and evidence that their systems are capable of detecting 
marine mammals, particularly large whales, at distances necessary to 
ensure that the required mitigation measures are effective. On April 7, 
2023, Ocean Wind submitted an Alternative Monitoring Plan for Nighttime 
Pile Driving outlining night time monitoring protocols and equipment. 
Given existing uncertainty with the novelty of the technology, in this 
final rule, NMFS, in agreement with BOEM, is allowing nighttime pile 
driving to occur from June 1 through October 31 annually, if the 
Alternative Monitoring Plan is approved. This period of time has been 
determined to be acceptable based on the Roberts et al. (2023) data 
demonstrating low North Atlantic right whale densities during these 
months. Nighttime pile driving outside of this period (i.e., May, 
November-December) must not occur. From June 1 through to October 31, 
annually, Ocean Wind will have the ability to initiate impact pile 
driving at any time (day or night). Subsequent reports submitted by 
Ocean Wind will allow NMFS to continue to evaluate the efficacy of the 
technologies and methodologies and to initiate adaptive management 
approaches, if necessary. We also continue to encourage Ocean Wind to 
further investigate and test advanced technology detection systems. Any 
and all vibratory pile driving associated with cofferdams and goal 
posts installation and removal would only be able to occur during 
daylight hours. Any UXO/MEC detonations will 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. 
Lastly, given the very small Level B harassment zone associated with 
HRG survey activities and no anticipated or authorized Level A 
harassment, NMFS is not requiring any daily restrictions for HRG 
surveys.
    More information on activity-specific seasonal and daily 
restrictions can be found in the regulatory text at the end of this 
rulemaking.

Noise Abatement Systems

    Ocean Wind is required to employ noise abatement systems (NAS), 
also known as noise attenuation systems, during all foundation 
installation (i.e., impact pile driving) and UXO/MEC detonation 
activities to reduce the sound pressure levels that are transmitted 
through the water in an effort to reduce ranges to acoustic thresholds 
and minimize, to the extent practicable, any acoustic impacts resulting 
from these activities. Ocean Wind is required to use at least two NAS 
to ensure that measured sound levels do not exceed the levels modeled 
for a 10-dB sound level reduction for foundation installation, which is 
likely to include a double big bubble curtain combined with another NAS 
(e.g., hydro-sound damper, or an AdBm Helmholz resonator), as well as 
the adjustment of operational protocols to minimize noise levels. For 
UXO/MEC detonation, a double big bubble curtain must be used and the 
hoses must be placed at distances to avoid damage to the bubble curtain 
during detonation. A single bubble curtain, alone or in combination 
with another NAS device, may not be used for either pile driving or 
UXO/MEC detonation as received SFV data reveals this approach is 
unlikely to attenuate sounds to the degree distances to harassment 
thresholds are at or smaller than those modeled assuming 10-dB of 
attenuation. Should the research and development phase of 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 foundation installation and UXO/
MEC detonation activities.
    Two categories of NAS exist: primary and secondary. A primary NAS 
would be used to reduce the level of noise produced by foundation 
installation activities at the source, typically through adjustments on 
to the equipment (e.g., hammer strike parameters). Primary NAS are 
still evolving and will be considered for use during mitigation efforts 
when the NAS has been demonstrated as effective in commercial projects. 
However, as primary NAS are not fully effective at eliminating noise, a 
secondary NAS would be employed. The secondary NAS 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, reduce the distance 
the higher energy sound propagates through the water column. Together, 
these systems must reduce noise levels to those not exceeding modeled 
ranges to Level A harassment and Level B harassment isopleths 
corresponding to those modeled assuming 10-dB sound attenuation, 
pending results of Sound Field Verification (SFV; see Sound Field 
Verification section below and Part 217--Regulations Governing The 
Taking And Importing Of Marine Mammals).
    Noise abatement systems, such as bubble curtains, are used to 
decrease the sound levels radiated from a source. Bubbles create a 
local impedance change that acts as a barrier to sound transmission. 
The size of the bubbles determines their effective frequency band, with 
larger bubbles needed for lower frequencies. There are a variety of 
bubble curtain systems, confined or unconfined bubbles, and some with 
encapsulated bubbles or panels. Attenuation levels also vary by type of 
system, frequency band, and location. Small bubble curtains have been 
measured to reduce sound levels but effective attenuation is highly 
dependent on depth of water, current, and configuration and operation 
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann, 
2013). Bubble curtains vary in terms of the sizes of the bubbles and 
those with larger bubbles tend to perform a bit better and more 
reliably, particularly when deployed with two separate rings (Bellmann, 
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016). 
Encapsulated bubble systems (i.e., 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

[[Page 62957]]

difficulty in properly installing and operating in-water attenuation 
devices.
    The literature presents a wide array of observed attenuation 
results for bubble curtains. The variability in attenuation levels is 
the result of variation in design as well as differences in site 
conditions and difficulty in properly installing and operating in-water 
attenuation devices. D[auml]hne et al. (2017) found that single bubble 
curtains that reduce sound levels by 7 to 10 dB reduced the overall 
sound level by approximately 12 dB when combined as a double bubble 
curtain for 6-m steel monopiles in the North Sea. During installation 
of monopiles (consisting of approximately 8-m in diameter) for more 
than 150 WTGs in comparable water depths (> 25 m) and conditions in 
Europe indicate that attenuation of 10 dB is readily achieved 
(Bellmann, 2019; Bellmann et al., 2020) using single BBCs for noise 
attenuation. When a double big bubble curtain is used (noting a single 
bubble curtain is not allowed), Ocean Wind is required to maintain 
numerous operational performance standards. These standards are defined 
in the regulatory text at the end of this rulemaking, and include, but 
are not limited to, construction contractors must train personnel in 
the proper balancing of airflow to the bubble ring and Ocean Wind must 
submit a performance test and maintenance report to NMFS within 72 
hours following the performance test. Corrections to the attenuation 
device to meet regulatory requirements must occur prior to use during 
foundation installation activities and UXO/MEC detonation. In addition, 
a full maintenance check (e.g., manually clearing holes) must occur 
prior to each pile being installed or any UXO/MEC detonated. If Ocean 
Wind uses a noise mitigation device in addition to a double big bubble 
curtain, similar quality control measures are required.
    Ocean Wind is required to submit an SFV plan to NMFS for approval 
at least 180 days prior to installing foundations or detonating UXO/
MECs. They are also required to submit interim and final SFV data 
results to NMFS and make corrections to the noise attenuation systems 
in the case that any SFV measurements demonstrate noise levels are 
above those modeled assuming 10 dB. These frequent and immediate 
reports allow NMFS to better understand the sound fields to which 
marine mammals are being exposed and require immediate corrective 
action should they be misaligned with anticipated noise levels within 
our analysis.
    Noise abatement devices are not required during HRG surveys, 
cofferdam (sheet pile) installation and removal, and goal post (pipe 
pile) installation and removal. Regarding cofferdam sheet pile and goal 
post pipe pile installation and removal, NAS is not practicable to 
implement due to the physical nature of linear sheet piles and angled 
pipe piles, and is of low risk for impacts to marine mammals due to the 
short work duration and lower noise levels produced during the 
activities. Regarding HRG surveys, NAS cannot practicably be employed 
around a moving survey ship, but Ocean Wind is required to make efforts 
to minimize source levels by using the lowest energy settings on 
equipment that has the potential to result in harassment of marine 
mammals (e.g., sparkers, boomers) and turn off equipment when not 
actively surveying. Overall, minimizing the amount and duration of 
noise in the ocean from any of the project's activities through use of 
all means necessary (e.g., noise abatement, turning off power) will 
effect the least practicable adverse impact on marine mammals.

Clearance and Shutdown Zones

    NMFS requires the establishment of both clearance and, where 
technically feasible, shutdown zones during project activities that 
have the potential to result in harassment of marine mammals. The 
purpose of ``clearance'' of a particular zone is to minimize potential 
instances of auditory injury and more severe behavioral disturbances by 
delaying the commencement of an activity if marine mammals are near the 
activity. 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.
    All relevant clearance and shutdown zones during project activities 
would be monitored by NMFS-approved PSOs and/or PAM operators (as 
described in the regulatory text at the end of this rulemaking). At 
least one PAM operator must review data from at least 24 hours prior to 
foundation installation or any UXO/MEC detonations and must actively 
monitor hydrophones for 60 minutes prior to commencement of these 
activities. Any sighting or acoustic detection of a North Atlantic 
right whale triggers a delay to commencing pile driving and shutdown.
    Prior to the start of certain specified activities (foundation 
installation, cofferdam install and removal, HRG surveys, UXO/MEC 
detonations), Ocean Wind must ensure designated areas (i.e., clearance 
zones, Tables 36-39) are clear of marine mammals prior to commencing 
activities to minimize the potential for and degree of harassment. For 
foundation installation and UXO/MEC detonation, PSOs must visually 
monitor clearance zones for marine mammals for a minimum of 60 minutes, 
where the zone must be confirmed free of marine mammals at least 30 
minutes directly prior to commencing these activities. Clearance zones 
represent the largest Level A harassment zone for each species group 
plus 20 percent or a minimum of 100 m (whichever is greater). For 
foundation installation, the minimum visibility zone would extend 1,650 
m from the pile during summer months and 2,500 m during December (Table 
36). This value corresponds to the modeled maximum 
ER95% distances to the Level A harassment 
threshold for low-frequency cetaceans, assuming 10 dB of attenuation.
    For cofferdam and goal post pile driving and HRG surveys, 
monitoring must be conducted for 30 minutes prior to initiating 
activities and the clearance zones must be free of marine mammals 
during that time.
    For any other in-water construction heavy machinery activities 
(e.g., trenching, cable laying, etc.), if a marine mammal is on a path 
towards or comes within 10 m (32.8 ft) of equipment, Ocean Wind is 
required to 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.
    Once an activity begins, any marine mammal entering their 
respective shutdown zone would trigger the activity to cease. In the 
case of pile driving, the shutdown requirement may be waived if 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 or the lead engineer determines there is 
pile refusal or pile instability. Because UXO/MEC detonations are 
instantaneous, no shutdown is possible; therefore, there are clearance 
zones but no shutdown zones for UXO/MEC detonations (Table 38). In 
situations when shutdown is called for during impact pile driving but 
Ocean Wind determines shutdown is not practicable due to aforementioned 
emergency reasons, 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

[[Page 62958]]

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. Ocean 
Wind must document and report to NMFS all cases where the emergency 
exemption is taken.
    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 must not restart until the North Atlantic 
right whale has neither been visually or acoustically detected for 30 
minutes. Upon re-starting pile driving, soft-start protocols must be 
followed if pile driving has ceased for 30 minutes or longer.
    The clearance and shutdown zone sizes vary by species and are shown 
in Table 36, Table 37, and Table 38. Ocean Wind is allowed to request 
modification to these zone sizes pending results of sound field 
verification (see regulatory text at the end of this rulemaking). Any 
changes to zone size would be part of adaptive management and would 
require NMFS' approval.

  Table 36--Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones During Impact Pile Driving in
                                             Summer (and Winter) \a\
----------------------------------------------------------------------------------------------------------------
                                         North atlantic right        Large                     Harbor
          Monitoring zones                      whales               whales     Delphinids   porpoises    Seals
----------------------------------------------------------------------------------------------------------------
Minimum Visibility Zone \b\.........                               1,650 m (2,500 m)
                                     ---------------------------------------------------------------------------
Clearance Zone \c\ \d\..............  Any distance..............      2,000 m        100 m      1,100 m    100 m
                                                                    (3,000 m)                 (1,750 m)
Shutdown Zone \d\...................  Any distance..............      1,800 m        100 m      1,000 m    100 m
                                                                    (2,500 m)                 (1,450 m)
                                     ---------------------------------------------------------------------------
PAM Monitoring Zone.................                                   10,000 m
                                     ---------------------------------------------------------------------------
Level B Harassment (Acoustic Range,                          Monopiles: 3,253 m (3,534 m)
 R95%).
                                                             Pin Piles: 2,155 m (2,522 m)
----------------------------------------------------------------------------------------------------------------
\a\ Winter (i.e., December) distances are presented in parentheses.
\b\ The minimum visibility zone is equal to the modeled maximum ER95% distances to the Level A harassment
  threshold for low-frequency cetaceans, assuming 10 dB of attenuation.
\c\ The clearance zone is equal to the maximum Level A harassment distance for each species group (assuming 10
  dB of attenuation) plus 20 percent or a minimum of 100 m (whichever is greater).
\d\ This zone applies to both visual and PAM.


  Table 37--Distances to Harassment Thresholds and Mitigation Zones \a\ During Vibratory Driving of Sheet Piles
                           and/or Casing Pipe Piles for Cofferdams and Goal Posts \d\
----------------------------------------------------------------------------------------------------------------
                                                                Level A
                                                              harassment     Level B     Clearance     Shutdown
                Marine mammal hearing groups                 (SELcum) (m)   harassment    zone \b\     zone \c\
                                                                               (m)          (m)          (m)
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans....................................          86.7       10,000          150          100
Mid-frequency cetaceans....................................           7.7       10,000          150          100
High-frequency cetaceans...................................         128.2       10,000          150          150
Phocid Pinnipeds...........................................          52.7       10,000          150           60
----------------------------------------------------------------------------------------------------------------
Note: SELcum = cumulative sound exposure level; SPLpk = peak sound pressure level.
\a\ Zone sizes are based upon a practical spreading loss model and a source level of 165.0 dB re 1 [mu]Pa
  (JASCO, 2021).
\b\ The clearance zones for large whales, porpoises, and seals are based upon the maximum Level A harassment
  zone for temporary cofferdams (128.2 m; Table 37) and rounded up for PSO clarity.
\c\ The shutdown zones for large whales (including North Atlantic right whale) and porpoises are based upon the
  maximum Level A harassment zone for each group and rounded up for PSO clarity. Shutdown zones for other
  dolphins and pilot whales were set using precautionary distances.
\d\ Although Ocean Wind is also building temporary goal posts in some locations to aid their nearshore
  installation work, they have committed to using the same zones previously proposed for temporary cofferdams as
  they are considered more conservative and protective.

    In the proposed rule, we presented zone sizes based solely on the 
largest charge weight due to uncertainty on how accurately these charge 
weights could be identified in the water. Since the proposed rule, 
Ocean Wind has reliably demonstrated that they can identify charge 
weights in the field to allow for charge weight-specific mitigative 
zones. Because of this, Ocean Wind is required to implement the As Low 
as Reasonably Practicable (ALARP) process, as described in the UXO/MEC 
Charge Weight Memo. This process requires Ocean Wind to undertake 
``lift-and-shift'' (i.e., physical removal) and then lead up to in-situ 
disposal, as necessary, which could include low-order (deflagration) to 
high-order (detonation) methods of removal. Another approach involves 
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. 
Ocean Wind will follow a Risk Management Framework designed to align 
with the ALARP principle which includes historical

[[Page 62959]]

research/hazard profiling, communication with all relevant State and 
Federal Agencies, and the standards within their removal plan (see the 
UXO/MEC Charge Weight Memo); we believe there is a high level of 
certainty that charge weights and appropriate removal approaches can be 
implemented in the field. Furthermore, we believe that this approach 
will ensure the least practicable adverse impact on marine mammals by 
mitigating the potential for TTS for each charge weight. The UXO/MEC 
Charge Weight Memo is found on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility.
    In following this charge weight-specific approach, Ocean Wind is 
required to clear the relevant zones as described in Table 38. These 
zones are based on (but not equal to) the greatest TTS threshold 
distances for each charge weight at any modeled site. We note that 
harbor porpoises and seals are difficult to detect at great distances 
but, due to the UXO/MEC detonation time of year restrictions, their 
abundance is likely to be relatively low. These zone sizes may be 
adjusted based on SFV and confirmation of the UXO/MEC or donor charge 
sizes after approval by NMFS.
    No minimum visibility zone is required for UXO/MEC detonation as 
the entire visual clearance zone must be clear given the potential for 
lung and gastrointestinal tract injury.

   Table 38--Clearance, Level A Harassment, and Level B Harassment Zones During UXO/MEC Detonations, by Charge
                                 Weight and Assuming 10 dB of Sound Attenuation
----------------------------------------------------------------------------------------------------------------
                                                                  Low-         Mid-        High-
      UXO/MEC charge weights                                   frequency    frequency    frequency      Phocid
                                                               cetaceans    cetaceans    cetaceans    pinnipeds
----------------------------------------------------------------------------------------------------------------
E4 (2.3 kg)......................  Level A harassment (m)...          552           50        1,820          182
                                   Level B harassment (m)...         2,82          453        6,160        1,470
                                   Clearance Zone (m) a b...        2,500          500        2,500        1,000
E6 (9.1 kg)......................  Level A harassment (m)...          982           75        2,590          357
                                   Level B harassment (m)...        4,680          773        8,000        2,350
                                   Clearance Zone (m) a b...        4,000          600        4,000        1,500
E8 (45.5 kg).....................  Level A harassment (m)...        1,730          156        3,900          690
                                   Level B harassment (m)...        7,490        1,240       10,300        3,820
                                   Clearance Zone (m) a b...        6,000        1,000        6,000        3,000
E10 (227 kg).....................  Level A harassment (m)...        2,970          337        5,400        1,220
                                   Level B harassment (m)...       10,500        2,120       12,900        5,980
                                   Clearance Zone (m) a b...        9,000        1,500        9,000        4,000
E12 (454 kg).....................  Level A harassment (m)...        3,780          461        6,200        1,600
                                   Level B harassment (m)...       11,900        2,550       14,100        7,020
                                   Clearance Zone (m) a b...       10,000        2,000       10,000        5,000
----------------------------------------------------------------------------------------------------------------
\a\ The clearance zones presented here for the Level B harassment thresholds were derived based on an
  approximate proportion of the size of the Level B harassment isopleth.
\b\ Some of the zones have been rounded for PSO clarity.


              Table 39--Level B Harassment Threshold Ranges and Mitigation Zones During HRG Surveys
----------------------------------------------------------------------------------------------------------------
                                                               Level B harassment zone
                                                                         (m)
                    Marine mammal species                    --------------------------  Clearance     Shutdown
                                                                Boomer/                   zone (m)     zone (m)
                                                                sparker       CHIRPs
----------------------------------------------------------------------------------------------------------------
Low-frequency cetacean (North Atlantic right whale).........          141           48          500          500
Other low-frequency cetaceans (non-North Atlantic right       ...........  ...........          100          100
 whale species).............................................
Mid-frequency cetaceans.....................................          141           48          100      \a\ 100
High-frequency cetaceans....................................          141           48          100      \b\ 100
Phocid Pinnipeds............................................          141           48          100          100
----------------------------------------------------------------------------------------------------------------
\a\ An exception is noted for bow-riding delphinids of the following genera: Delphinus, Stenella,
  Lagenorhynchus, and Tursiops.
\b\ NMFS corrects a typo here where the shutdown zone size for high-frequency cetaceans was incorrectly labeled
  as 199 m. This has been corrected to 100 m.

Soft-Start/Ramp-Up

    The use of a soft-start or ramp-up 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 or HRG 
equipment 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 four to six 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 and installation conditions. The 
final methodology will be developed by Ocean Wind considering final 
design details including site-specific soil properties and other 
considerations. HRG survey operators are required to ramp-up sources 
when the acoustic sources are used unless the equipment operates on a 
binary on/off switch. The ramp-up would involve starting from the 
smallest setting to the operating level over a period of approximately 
30 minutes. Given the instantaneous nature of UXO/MEC detonations, no 
ramp-up/soft-start protocol is possible.
    Soft-start and ramp-up will be required at the beginning of each 
day's activity and at any time following a cessation of activity of 30 
minutes or longer. Prior to soft-start or ramp-up

[[Page 62960]]

beginning, the operator must receive confirmation from the PSO that the 
clearance zone is clear of any marine mammals.

Fishery Monitoring Surveys

    While the likelihood of Ocean Wind's fishery monitoring surveys 
impacting marine mammals is minimal, NMFS requires Ocean Wind to adhere 
to gear and vessel mitigation measures to reduce potential impacts to 
the extent practicable. In addition, all crew undertaking the fishery 
monitoring survey activities are required to receive protected species 
identification training prior to activities occurring and attend the 
aforementioned onboarding training. The specific requirements that NMFS 
has set for the fishery monitoring surveys can be found in the 
regulatory text at the end of this rulemaking.
    Based on our evaluation of the mitigation measures, as well as 
other measures considered by NMFS, NMFS has determined that these 
measures will provide the means of affecting 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.

Monitoring and Reporting

    As noted in the Changes From the Proposed to Final Rule section, we 
have added, modified, or clarified a number of monitoring and reporting 
measures since the proposed rule. These changes are described in detail 
in the sections below and, otherwise, the marine mammal monitoring and 
reporting requirements have not changed since the proposed rule.
    In order to promulgate a rulemaking for an activity, section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA 
implementing regulations at 50 CFR 216.104(a)(13) indicate that 
requests for authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area. Effective reporting is critical 
both to compliance as well as ensuring that the most value is obtained 
from the required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
     Mitigation and monitoring effectiveness.
    Separately, monitoring is also regularly used to support mitigation 
implementation, which is referred to as mitigation monitoring, and 
monitoring plans typically include measures that both support 
mitigation implementation and increase our understanding of the impacts 
of the activity on marine mammals.
    During the planned activities, visual monitoring by NMFS-approved 
PSOs would be conducted before, during, and after all impact pile 
driving, vibratory pile driving, UXO/MEC detonations, and HRG surveys. 
PAM would be also conducted during impact pile driving and UXO/MEC 
detonations. Visual observations and acoustic detections would be used 
to support the activity-specific mitigation measures (e.g., clearance 
zones). To increase understanding of the impacts of the activity on 
marine mammals, PSOs must record all incidents of marine mammal 
occurrence at any distance from the piling locations, near the HRG 
acoustic sources, and during UXO/MEC detonations. PSOs would document 
all behaviors and behavioral changes, in concert with distance from an 
acoustic source. The required monitoring is described below, beginning 
with PSO measures that are applicable to all the aforementioned 
activities, followed by activity-specific monitoring requirements.

Protected Species Observer and PAM Operator Requirements

    Ocean Wind is required to employ NMFS-approved PSOs and PAM 
operators. PSOs are trained professionals who are tasked with visually 
monitoring for marine mammals during pile driving, UXO/MEC detonation, 
and HRG surveys. The primary purpose of a PSO is to carry out the 
monitoring, collect data, and, when appropriate, call for the 
implementation of mitigation measures. In addition to visual 
observations, NMFS requires Ocean Wind to conduct PAM by PAM operators 
during impact pile driving, UXO/MEC detonations, and vessel transit.
    The inclusion of PAM, which would be conducted by NMFS-approved PAM 
operators, following a standardized measurement, processing methods, 
reporting metrics, and metadata standards for offshore wind, alongside 
visual data collection is valuable to provide the most accurate record 
of species presence as possible and, together, these two monitoring 
methods are well understood to provide best results when combined 
together (e.g., Barlow and Taylor, 2005; Clark et al., 2010; Gerrodette 
et al., 2011; Van Parijs et al., 2021). Acoustic monitoring (in 
addition to visual monitoring) increases the likelihood of detecting 
marine mammals within the shutdown and clearance zones of project 
activities, which when applied in combination of required shutdowns 
helps to further reduce the risk of marine mammals being exposed to 
sound levels that could otherwise result in acoustic injury or more 
intense behavioral harassment.
    The exact configuration and number of PAM systems depends 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. Larger baleen cetacean species (i.e., mysticetes), which 
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).

[[Page 62961]]

As there are no ``perfect fit'' single-optimal-array configurations, 
these set-ups would need to be considered on a case-by-case basis.
    NMFS does not formally administer any PSO or PAM operator training 
program or endorse specific providers but will approve PSOs and PAM 
operators that have successfully completed courses that meet the 
curriculum and trainer requirements referenced below and further 
specified in the regulatory text at the end of this rulemaking.
    NMFS will provide PSO and PAM operator approvals in the context of 
the need to ensure that PSOs and PAM operators have the necessary 
training and/or experience to carry out their duties competently. In 
order for PSOs and PAM operators to be approved, NMFS must review and 
approve PSO and PAM operator resumes indicating successful completion 
of an acceptable training course. PSOs and PAM operators must have 
previous experience observing marine mammals and must have the ability 
to work with all required and relevant software and equipment. NMFS may 
approve PSOs and PAM operators as conditional or unconditional. A 
conditional approval may be given to one who is trained but has not yet 
attained the requisite experience. An unconditional approval is given 
to one who is trained and has attained the necessary experience. The 
specific requirements for conditional and unconditional approval can be 
found in the regulatory text at the end of this rulemaking.
    Conditionally-approved PSOs and PAM operators would be paired with 
an unconditional-approved PSO (or PAM operator, as appropriate) to 
ensure that the quality of marine mammal observations and data 
recording is kept consistent. Additionally, activities requiring PSO 
and/or PAM operator monitoring must have a lead on duty. The visual PSO 
field team, in conjunction with the PAM team (i.e., marine mammal 
monitoring team), would have a lead member (designated as the ``Lead 
PSO'' or ``Lead PAM operator'') who would be required to meet the 
unconditional approval standard.
    Although PSOs and PAM operators must be approved by NMFS, third-
party observer providers and/or companies seeking PSO and PAM operator 
staffing should expect that those having satisfactorily completed 
acceptable training and with the requisite experience (if required) 
will be quickly approved. Ocean Wind is required to request PSO and PAM 
operator approvals 60 days prior to those personnel commencing work. An 
initial list of previously approved PSO and PAM operators must be 
submitted by Ocean Wind at least 30 days prior to the start of the 
project. Should Ocean Wind require additional PSOs or PAM operators 
throughout the project, Ocean Wind must submit a subsequent list of 
pre-approved PSOs and PAM operators to NMFS at least 15 days prior to 
planned use of that PSO or PAM operator. A PSO may be trained and/or 
experienced as both a PSO and PAM operator and may perform either duty, 
pursuant to scheduling requirements (and vice versa).
    A minimum number of PSOs would be required to actively observe for 
the presence of marine mammals during certain project activities with 
more PSOs required as the mitigation zone sizes increase. A minimum 
number of PAM operators would be required to actively monitor for the 
presence of marine mammals during foundation installation and UXO/MEC 
detonation. The types of equipment required (e.g., big eyes on the pile 
driving vessel) are also designed to increase marine mammal detection 
capabilities. Specifics on these types of requirements can be found in 
the regulations at the end of this rulemaking. In summary, at least 
three PSOs and one PAM operator per acoustic data stream (equivalent to 
the number of acoustic buoys) must be on-duty and actively monitoring 
per platform during foundation installation and any UXO/MEC detonation 
event; at least two PSOs must be on duty during cable landfall 
construction vibratory pile installation and removal; at least one PSO 
must be on-duty during HRG surveys conducted during daylight hours; and 
at least two PSOs must be on-duty during HRG surveys conducted during 
nighttime.
    In addition to monitoring duties, PSOs and PAM operators are 
responsible for data collection. The data collected by PSO and PAM 
operators and subsequent analysis provide the necessary information to 
inform an estimate of the amount of take that occurred during the 
project, better understand the impacts of the project on marine 
mammals, address the effectiveness of monitoring and mitigation 
measures, and to adaptively manage activities and mitigation in the 
future. Data reported includes information on marine mammal sightings, 
activity occurring at time of sighting, monitoring conditions, and if 
mitigative actions were taken. Specific data collection requirements 
are contained within the regulations at the end of this rulemaking.
    Ocean Wind is required to submit a Pile Driving and UXO/MEC Marine 
Mammal Monitoring Plan and a PAM Plan to NMFS 180 days in advance of 
foundation installation activities. The Plan must include details 
regarding PSO and PAM monitoring protocols and equipment proposed for 
us. More specifically, the PAM Plan must include a description of all 
proposed PAM equipment, address how the proposed passive acoustic 
monitoring must follow standardized measurement, processing methods, 
reporting metrics, and metadata standards for offshore wind as 
described in NOAA and BOEM Minimum Recommendations for Use of Passive 
Acoustic Listening Systems in Offshore Wind Energy Development 
Monitoring and Mitigation Programs (Van Parijs et al., 2021). NMFS must 
approve the plan prior to foundation installation activities or UXO/MEC 
detonation commencing. Specific details on NMFS' PSO or PAM operator 
qualifications and requirements can be found in Part 217--Regulations 
Governing The Taking And Importing Of Marine Mammals at the end of this 
rulemaking. Additional information can be found in Ocean Wind's 
Protected Species Mitigation and Monitoring Plan (PSMMP) (Appendix B) 
found in their ITA application on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility.

Sound Field Verification

    Ocean Wind must conduct SFV measurements during all UXO/MEC 
detonations and for all impact pile-driving activities associated with 
the installation of, at minimum, the first three monopile foundations. 
SFV measurements must continue until at least three consecutive piles 
demonstrate distances to thresholds are at or below those modeled 
assuming 10 dB of attenuation. Subsequent SFV measurements are also 
required should larger piles be installed or additional piles be driven 
that are anticipated to produce longer distances to harassment 
isopleths than those previously measured (e.g., higher hammer energy, 
greater number of strikes, etc.). The measurements and reporting 
associated with SFV can be found in the regulatory text at the end of 
this rulemaking. The requirements are extensive to ensure monitoring is 
conducted appropriately and the reporting frequency is such that Ocean 
Wind is required to make adjustments quickly (e.g., ensure bubble 
curtain hose maintenance, check bubble curtain air pressure supply, add 
additional sound attenuation, etc.) to

[[Page 62962]]

ensure marine mammals are not experiencing noise levels above those 
considered in this analysis. For recommended SFV protocols for impact 
pile driving, please consult ISO 18406 Underwater acoustics--
Measurement of radiated underwater sound from percussive pile driving 
(2017).

Reporting

    Prior to any construction activities occurring, Ocean Wind would 
provide a report to NMFS Office of Protected Resources 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 regulations and LOA. All data collected 
relating to the Project would be recorded using industry-standard 
software (e.g., Mysticetus or a similar software) installed on field 
laptops and/or tablets. Ocean Wind is required to submit weekly, 
monthly, annual, and situational reports. The specifics of what we 
require to be reported can be found in the regulatory text at the end 
of this final rule.
    Weekly Report--During foundation installation activities, Ocean 
Wind would be required to compile and submit weekly marine mammal 
monitoring reports for foundation installation pile driving to NMFS 
Office of Protected Resources that document the daily start and stop of 
all pile-driving activities, the start and stop of associated 
observation periods by PSOs, details on the deployment of PSOs, a 
record of all detections of marine mammals (acoustic and visual), any 
mitigation actions (or if mitigation actions could not be taken, 
provide reasons why), and details on the noise abatement system(s) 
(e.g., system type, distance deployed from the pile, bubble rate, 
etc.). Weekly reports will be due on Wednesday for the previous week 
(Sunday to Saturday). The weekly reports are also required to identify 
which turbines become operational and when (a map must be provided). 
Once all foundation pile installation is complete, weekly reports would 
no longer be required.
    Monthly Report--Ocean Wind is required to compile and submit 
monthly reports to NMFS Office of Protected Resources that include a 
summary of all information in the weekly reports, including project 
activities carried out in the previous month, vessel transits (number, 
type of vessel, and route), number of piles installed, all detections 
of marine mammals, and any mitigative actions taken. Monthly reports 
would be due on the 15th of the month for the previous month. The 
monthly report would also identify which turbines become operational 
and when (a map must be provided). Once all foundation pile 
installation is complete, monthly reports would no longer be required.
    Annual Reporting--Ocean Wind is required to submit an annual marine 
mammal monitoring (both PSO and PAM) report to NMFS Office of Protected 
Resources no later than 90 days following the end of a given calendar 
year describing, in detail, all of the information required in the 
monitoring section above. A final annual report must be prepared and 
submitted within 30 calendar days following receipt of any NMFS 
comments on the draft report.
    Final 5-Year Reporting--Ocean Wind must submit its draft 5-year 
report(s) to NMFS Office of Protected Resources 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 5-year 
report must be prepared and submitted within 60 calendar days following 
receipt of any NMFS comments on the draft report. Information contained 
within this report is described at the beginning of this section.
    Situational Reporting--Specific situations encountered during the 
development of the Project requires immediate reporting. For instance, 
if a North Atlantic right whale is observed at any time by PSOs or 
project personnel, the sighting must be immediately (if not feasible, 
as soon as possible and no longer than 24 hours after the sighting) 
reported to NMFS. If a North Atlantic right whale is acoustically 
detected at any time via a project-related PAM system, the detection 
must be reported as soon as possible and no longer than 24 hours after 
the detection to NMFS via the 24-hour North Atlantic right whale 
Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is 
not necessary when reporting PAM detections via the template.
    If a sighting of a stranded, entangled, injured, or dead marine 
mammal occurs, the sighting would be reported to NMFS Office of 
Protected Resources, the NMFS Greater Atlantic Stranding Coordinator 
for the New England/Mid-Atlantic area (866-755-6622), and the U.S. 
Coast Guard within 24 hours. If the injury or death was caused by a 
project activity, Ocean Wind must immediately cease all activities 
until NMFS Office of Protected Resources 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 Office of Protected Resources 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 Office of Protected Resources.
    In the event of a vessel strike of a marine mammal by any vessel 
associated with the Project, Ocean Wind must immediately report the 
strike incident. If the strike occurs in the Greater Atlantic Region 
(Maine to Virginia), Ocean Wind must call the NMFS Greater Atlantic 
Stranding Hotline. Separately, Ocean Wind must also and immediately 
report the incident to NMFS Office of Protected Resources and GARFO. 
Ocean Wind must immediately cease all on-water activities until NMFS 
Office of Protected Resources 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 Office 
of Protected Resources 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.
    In the event of any lost gear associated with the fishery surveys, 
Ocean Wind must report to the GARFO as soon as possible or within 24 
hours of the documented time of missing or lost gear. This report must 
include information on any markings on the gear and any efforts 
undertaken or planned to recover the gear.
    The specifics of what NMFS Office of Protected Resources requires 
to be reported is listed at the end of this rulemaking in the 
regulatory text.
    Sound Field Verification--Ocean Wind is required to submit interim 
SFV reports after each foundation installation and UXO/MEC detonation 
monitored as soon as possible but within 48 hours. A final SFV report 
for all monopile foundation installation and UXO/MEC detonations would 
be required within 90 days following completion of acoustic monitoring.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Ocean Wind's construction activities contain an adaptive management 
component. Our understanding of the effects of

[[Page 62963]]

offshore wind construction activities (e.g., acoustic and explosive 
stressors) on marine mammals continues to evolve, which makes the 
inclusion of an adaptive management component both valuable and 
necessary within the context of 5-year regulations.
    The monitoring and reporting requirements in this final rule 
provide NMFS with information that helps us to better understand the 
impacts of the project's activities on marine mammals and informs our 
consideration of whether any changes to mitigation and monitoring are 
appropriate. The use of adaptive management allows NMFS to consider new 
information and modify mitigation, monitoring, or reporting 
requirements, as appropriate, with input from Ocean Wind regarding 
practicability, if such modifications will have a reasonable likelihood 
of more effectively accomplishing the goal of the measures.
    The following are some of the possible sources of new information 
to be considered through the adaptive management process: (1) results 
from monitoring reports, including the weekly, monthly, situational, 
and annual reports required; (2) results from 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) are required to participate in one or more adaptive 
management meetings convened by NMFS and/or BOEM, in which the above 
information will be summarized and discussed in the context of 
potential changes to the mitigation or monitoring measures.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' by mortality, serious injury, Level A harassment and Level B 
harassment, we consider other factors, such as the likely nature of any 
behavioral responses (e.g., intensity, duration), the context of any 
such responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    In the Estimated Take section to this preamble, we discuss the 
estimated maximum number of takes by Level A harassment and Level B 
harassment that could occur from Ocean Wind's specified activities 
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 final rule, we 
evaluate the likely impacts of the enumerated harassment takes that are 
authorized in the context of the specific circumstances surrounding 
these predicted takes. We also collectively evaluate this information, 
as well as other more taxa-specific information and mitigation measure 
effectiveness, in group-specific discussions that support our 
negligible impact conclusions for each stock. As described above, no 
serious injury or mortality is expected or authorized for any species 
or stock.
    The Description of the Specified Activities section of this 
preamble describes Ocean Wind's specified activities that may result in 
take of marine mammals and an estimated schedule for conducting those 
activities. Ocean Wind has provided a realistic construction schedule 
although we recognize schedules may shift for a variety of reasons 
(e.g., weather or supply delays). However, the total amount of take 
would not exceed the 5-year totals and maximum annual total in any 
given year indicated in Tables 34 and 35, respectively.
    We base our analysis and negligible impact determination on the 
maximum number of takes that could occur and are authorized annually 
and across the effective period of these regulations and extensive 
qualitative consideration of other contextual factors that influence 
the degree of impact of the takes on the affected individuals and the 
number and context of the individuals affected. As stated before, the 
number of takes, both maximum annual and 5-year total, alone are only a 
part of the analysis.
    To avoid repetition, we provide some general analysis in this 
Negligible Impact Analysis and Determination section that applies to 
all the species listed in Table 2, given that some of the anticipated 
effects of Ocean Wind's construction activities on marine mammals are 
expected to be relatively similar in nature. Then, we subdivide into 
more detailed discussions for mysticetes, odontocetes, and pinnipeds 
which have broad life-history traits that support an overarching 
discussion of some factors considered within the analysis for those 
groups (e.g., habitat-use patterns, high-level differences in feeding 
strategies).
    Last, we provide a negligible impact determination for each species 
or stock, providing species or stock-specific information or analysis, 
where appropriate, for example, for North Atlantic right whales given 
their population status. Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of Ocean Wind's activities, and then providing species- or 
stock-specific information allows us to avoid duplication while 
ensuring that we have analyzed the effects of the specified activities 
on each affected species or stock. It is important to note that in the 
group or species sections, we base our negligible impact analysis on 
the maximum annual take that is predicted under the 5-year rule; 
however, the majority of the impacts are associated with WTG foundation 
and OSS foundation installation, which would occur largely within the 
first 2 to 3 years (2023 through 2024 or 2025). 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 33, 
34, and 35).
    As described previously, no serious injury or mortality is 
anticipated or authorized in this rule. Any Level A harassment 
authorized would be in the form of auditory injury (i.e., PTS) and not 
non-auditory injury (e.g., lung injury or gastrointestinal injury from 
UXO/MEC detonation). The amount of harassment Ocean Wind has requested, 
and NMFS is authorizing, is based on exposure models that consider the 
outputs of acoustic source and

[[Page 62964]]

propagation models and other data such as frequency of occurrence or 
group sizes. Several conservative parameters and assumptions are 
ingrained into these models, such as assuming forcing functions that 
consider direct contact with piles (i.e., no cushion allowances) and 
application of the average summer sound speed profile to all months 
within a given season. The exposure model results do not reflect any 
mitigation measures (other than 10 dB sound attenuation) or avoidance 
response. The amount of take requested and authorized also reflects 
careful consideration of other data (e.g., group size data) and for 
Level A harassment potential of some large whales, the consideration of 
mitigation measures. For all species, the amount of take authorized 
represents the maximum amount of Level A harassment and Level B 
harassment that could occur.

Behavioral Disturbance

    In general, NMFS anticipates that impacts on an individual that has 
been harassed are likely to be more intense when exposed to higher 
received levels and for a longer duration (though this is in no way a 
strictly linear relationship for behavioral effects across species, 
individuals, or circumstances) and less severe impacts result when 
exposed to lower received levels and for a brief duration. However, 
there is also growing evidence of the importance of contextual factors 
such as distance from a source in predicting marine mammal behavioral 
response to sound--i.e., sounds of a similar level emanating from a 
more distant source have been shown to be less likely to evoke a 
response of equal magnitude (DeRuiter and Doukara, 2012; Falcone et 
al., 2017). As described in the Potential Effects to Marine Mammals and 
their Habitat section of the proposed rule, 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. Southall et al. (2021), Ellison et al. 
(2012) and Moore and Barlow (2013), among others, emphasize the 
importance of context (e.g., behavioral state of the animals, distance 
from the sound source) in evaluating behavioral responses of marine 
mammals to acoustic sources. Harassment of marine mammals may result in 
behavioral modifications (e.g., avoidance, temporary cessation of 
foraging or communicating, changes in respiration or group dynamics, 
masking) or may result in auditory impacts such as hearing loss. In 
addition, some of the lower level physiological stress responses (e.g., 
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 produce 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 behavioral effects that might be expected to be 
part of a response that qualifies as an instance of Level B harassment 
by behavioral disturbance (which by nature of the way it is modeled/
counted, occurs within 1 day), the less severe end might include 
exposure to comparatively lower levels of a sound, at a greater 
distance from the animal, for a few or several minutes. A less severe 
exposure of this nature could result in a behavioral response such as 
avoiding an area that an animal would otherwise have chosen to move 
through or feed in for some amount of time, or breaking off one or a 
few feeding bouts. More severe effects could occur if an animal gets 
close enough to the source to receive a comparatively higher level, is 
exposed continuously to one source for a longer time, or is exposed 
intermittently to different sources throughout a day. Such effects 
might result in an animal having a more severe flight response and 
leaving a larger area for a day or more or potentially losing feeding 
opportunities for a day. However, such severe behavioral effects are 
expected to occur infrequently.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral 
reactions to noise exposure, when taking place in a biologically 
important context, such as disruption of critical life functions, 
displacement, or avoidance of important habitat, are more likely to be 
significant if they last more than 1 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 Project Area is shallow 
(ranging up to 40 m in the ECRs and 15 to 36 m in the Lease Area) and 
deep diving species, such as sperm whales, are not expected to be 
engaging in deep foraging dives when exposed to noise above NMFS 
harassment thresholds during the specified activities. Therefore, we do 
not anticipate impacts to deep foraging behavior to be impacted by the 
specified activities.
    It is also important to identify that the estimated number of takes 
does not necessarily equate to the number of individual animals Ocean 
Wind expects to harass (which is lower) but rather to the instances of 
take (i.e., exposures above the Level B harassment thresholds) that may 
occur. These instances may represent either brief exposures of seconds 
for UXO/MEC detonations, seconds to minutes for HRG surveys, or, in 
some cases, longer durations of exposure within a day (e.g., pile 
driving). Some individuals of a species may experience recurring 
instances of take over multiple days throughout the year while some 
members of a species or stock may experience one exposure as they move 
through an area, which means that the number of individuals taken is 
smaller than the total estimated takes. In short, for species that are 
more likely to be migrating through the area and/or for which only a 
comparatively smaller number of takes are predicted (e.g., some of the 
mysticetes), it is more likely that each take represents a different 
individual whereas for non-migrating species with larger amounts of 
predicted take, we expect that the total anticipated takes represent 
exposures of a smaller number of individuals of which some would be 
taken across multiple days.
    For Ocean Wind, impact pile driving of foundation piles is most 
likely to result in a higher magnitude and severity of behavioral 
disturbance than other activities (i.e., vibratory pile driving, UXO/
MEC detonations, and HRG surveys). Impact pile driving has higher 
source levels and longer durations (on an annual basis) than vibratory 
pile driving and HRG surveys. HRG survey equipment also produces 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 would result in only 
instantaneous exposures). While impact pile driving for foundation 
installation is anticipated to be most impactful for these reasons, 
impacts are minimized

[[Page 62965]]

through implementation of mitigation measures, including use of a sound 
attenuation system, soft-starts, the implementation of clearance zones 
that would facilitate a delay to pile-driving commencement, and 
implementation of shutdown zones. For example, given sufficient notice 
through the use of soft-start, marine mammals are expected to move away 
from a sound source that is disturbing prior to becoming exposed to 
very loud noise levels. The requirement to couple visual monitoring and 
PAM before and during all foundation installation and UXO/MEC 
detonations will increase the overall capability to detect marine 
mammals compared to one method alone. Measures such as the requirement 
to apply sound attenuation devices and implement clearance zones 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 instant that it occurs; 
hence, severity of behavioral responses are expected to be lower than 
would be the case 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 numerous or sequential days, impacts to individual 
fitness are not anticipated. Also, the effect of disturbance is 
strongly influenced by whether it overlaps with biologically important 
habitats when individuals are present--avoiding biologically important 
habitats will provide opportunities to compensate for reduced or lost 
foraging (Keen et al., 2021). 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; National Academy of Science, 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 takes by Level B harassment may represent takes in the form of 
behavioral disturbance, TTS, or both. As discussed in the Potential 
Effects of Specified Activities on Marine Mammals and their Habitat 
section of the proposed rule, in general, TTS can last from a few 
minutes to days, be of varying degree, and occur across different 
frequency bandwidths, all of which determine the severity of the 
impacts on the affected individual, which can range from minor to more 
severe. Impact and vibratory pile driving and UXO/MEC detonations are 
broadband noise sources but 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 that the 
frequencies produced by these activities do not span entire hearing 
ranges for any particular species. Additionally, though the frequency 
range of TTS that marine mammals might sustain would overlap with some 
of the frequency ranges of their vocalizations, the frequency range of 
TTS from Ocean Wind's pile driving and UXO/MEC detonation activities 
would not typically span the entire frequency range of one vocalization 
type, much less span all types of vocalizations or other critical 
auditory cues for any given species. The required mitigation measures 
further reduce the potential for TTS in mysticetes.
    Generally, both the degree of TTS and the duration of TTS would be 
greater if the marine mammal is exposed to a higher level of energy 
(which would occur when the peak dB level is higher or the duration is 
longer). The threshold for the onset of TTS was discussed previously 
(see the Estimated Take section of this preamble). 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 required mitigation and the nominal speed of 
the receiving animal relative to the stationary sources such as impact 
pile driving. The recovery time of TTS is also of importance when 
considering the potential impacts from TTS. In TTS laboratory studies 
(as discussed in the Potential Effects of the Specified Activities on 
Marine Mammals and their Habitat section of the proposed rule), 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 the project's 
activities) would result in behavioral changes or other impacts that 
would impact any individual's (of any hearing sensitivity) reproduction 
or survival.

Permanent Threshold Shift (PTS)

    NMFS is authorizing a very small amount of take by PTS to some 
marine mammal individuals. The numbers of authorized annual takes by 
Level A harassment are relatively low for all marine mammal stocks and 
species (Table 33). The only activities incidental to which we 
anticipate PTS may occur is from exposure to impact pile driving and 
UXO/MEC detonation, which produces 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 older harbor seals (Reichmuth et al., 2019). However, 
available TTS data (of mid-frequency hearing specialists exposed to 
mid- or high-frequency sounds (Southall et al., 2007; NMFS, 2018; 
Southall et al., 2019)) suggest that most threshold shifts occur in the 
frequency range of the source up to one octave higher than the source. 
We would anticipate a similar result for PTS. Further, no more than a 
small degree of PTS is expected to be associated with any of the 
incurred Level A harassment, given it is unlikely that animals would 
stay in the close vicinity of a source for a duration long enough to 
produce more than a small degree of PTS.
    PTS would consist of minor degradation of hearing capabilities 
occurring predominantly at frequencies one-half to one octave above the 
frequency of the energy produced by pile driving or instantaneous UXO/
MEC detonation (i.e., the low-frequency region below 2 kHz) (Cody and

[[Page 62966]]

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. Ocean Wind estimates 10 UXOs/MECs 
may be detonated and the exposure analysis conservatively assumes that 
all of the UXOs/MECs found would consist of the largest charge weight 
of UXO/MEC (E12; 454 kg). However, it is highly unlikely that all 
charges would be the maximum size; thus, the amount of Level A 
harassment that may occur incidental to the detonation of the UXOs/MECs 
is likely less than what is estimated here. In addition, during impact 
pile driving, given sufficient notice through use of soft-start prior 
to implementation of full hammer energy during impact pile driving, 
marine mammals are expected to move away from a sound source that is 
disturbing prior to it resulting in severe PTS.

Auditory Masking or Communication Impairment

    The ultimate potential impacts of masking on an individual are 
similar to those discussed for TTS (e.g., decreased ability to 
communicate, forage effectively, or detect predators), but an important 
difference is that masking only occurs during the time of the signal, 
versus TTS, which continues beyond the duration of the signal. Also, 
though, masking can result from the sum of exposure to multiple 
signals, none of which might individually cause TTS. Fundamentally, 
masking is referred to as a chronic effect because one of the key 
potential harmful components of masking is its duration--the fact that 
an animal would have reduced ability to hear or interpret critical cues 
becomes much more likely to cause a problem the longer it is occurring. 
Inherent in the concept of masking is the fact that the potential for 
the effect is only present during the times that the animal and the 
source are in close enough proximity for the effect to occur (and 
further, this time period would need to coincide with a time that the 
animal was utilizing sounds at the masked frequency).
    As our analysis has indicated, for this project we expect that 
impact pile driving foundations have the greatest potential to mask 
marine mammal signals, and this pile driving may occur for several, 
albeit intermittent, hours per day, for multiple days per year. Masking 
is fundamentally more of a concern at lower frequencies (which are 
pile-driving dominant frequencies), because low frequency signals 
propagate significantly further than higher frequencies and because 
they are more likely to overlap both the narrower low frequency calls 
of mysticetes, as well as many non-communication cues related to fish 
and invertebrate prey, and geologic sounds that inform navigation. 
However, the area in which masking would occur for all marine mammal 
species and stocks (e.g., predominantly in the vicinity of the 
foundation pile being driven) is small relative to the extent of 
habitat used by each species and stock. In summary, the nature of Ocean 
Wind's activities, paired with habitat use patterns by marine mammals, 
does not support the likelihood that the level of masking that could 
occur would have the potential to affect reproductive success or 
survival.

Impacts on Habitat and Prey

    Construction activities and UXO/MEC detonation may result in fish 
and invertebrate mortality or injury very close to the source, and all 
Ocean Wind's activities may cause some fish to leave the area of 
disturbance. It is anticipated that any mortality or injury would be 
limited to a very small subset of available prey and the implementation 
of mitigation measures such as the use of a noise attenuation system 
during impact pile driving and UXO/MEC detonation would further limit 
the degree of impact (again noting UXO/MEC detonation would be limited 
to 10 events over 5 years). Behavioral changes in prey in response to 
construction activities could temporarily impact marine mammals' 
foraging opportunities in a limited portion of the foraging range but, 
because of the relatively small area of the habitat that may be 
affected at any given time (e.g., around a pile being driven), the 
impacts to marine mammal habitat are not expected to cause significant 
or long-term negative consequences.
    Cable presence is not anticipated to impact marine mammal habitat 
as these would be buried, and any electromagnetic fields emanating from 
the cables are not anticipated to result in consequences that would 
impact marine mammals' prey to the extent they would be unavailable for 
consumption.
    The presence of wind turbines within the Lease Area could have 
longer-term impacts on marine mammal habitat, as the project would 
result in the persistence of the structures within marine mammal 
habitat for more than 30 years. The presence of structures such as wind 
turbines is, in general, likely to result in certain oceanographic 
effects in the marine environment, and may alter aggregations and 
distribution of marine mammal zooplankton prey through changing 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).
    As discussed in the Potential Effects of the Specified Activities 
on Marine Mammals and their Habitat section of the proposed rule, the 
project would consist of no more than 101 foundations (98 WTGs and 3 
OSSs) in the Lease Area, which will gradually become operational 
following construction completion, in around Year 3 of the rule. While 
there are likely to be oceanographic impacts from the presence of the 
Ocean Wind project, meaningful oceanographic impacts relative to 
stratification and mixing that would significantly affect marine mammal 
habitat and prey over large areas in key foraging habitats during the 
effective period of the regulations is not anticipated (which considers 
2-3 years of turbine operation). For these reasons, if oceanographic 
features are affected by the project during the effective period of the 
regulations, the impact on marine mammal habitat and their prey is 
likely to be comparatively minor; therefore, we are not authorizing 
take due to habitat and prey impacts.
    The Ocean Wind 1 Biological Opinion provided an evaluation of the 
presence and operation of the Project on, among other species, marine 
mammals and their prey. While the consultation considered the life of 
the project (25+ years), we considered the potential for the habitat 
and prey impacts to also occur within the 5-year effective time frame 
of this rule. Overall, the Biological Opinion concluded that impacts 
from loss of sandy bottom habitat (from the presence of turbines and 
placement of scour protection) as well as any beneficial reef effects 
are expected to be so small that they cannot be meaningfully measured, 
evaluated, or detected and are, therefore, insignificant. The 
Biological Opinion also concluded that the presence and operation of 
the wind farm may change the distribution of plankton with the wind 
farm, these changes are not expected to affect the oceanographic forces 
transporting zooplankton into the area. Therefore, the Biological 
Opinion concluded that the overall reduction in biomass of plankton is 
not an anticipated outcome of operating the

[[Page 62967]]

Project. Thus, because changes in the biomass of zooplankton are not 
anticipated, any higher trophic level impacts are also not anticipated. 
That is, no effects to pelagic fish or benthic invertebrates that 
depend on plankton as forage food are expected to occur. Zooplankton, 
fish and invertebrates are all considered marine mammal prey and, as 
fully described in the Biological Opinion, measurable, detectable or 
significant changes to marine mammal prey abundance and distribution 
from wind farm operation is not anticipated.

Mitigation To Reduce Impacts on All Species

    This rulemaking includes a variety of mitigation measures designed 
to minimize impacts on all marine mammals, with a focus on North 
Atlantic right whales (the latter is described in more detail below). 
For impact pile driving of foundation piles and UXO/MEC detonations, 
nine overarching mitigation measures are required, which are intended 
to reduce both the number and intensity of marine mammal takes: (1) 
seasonal/time of day work restrictions; (2) use of multiple PSOs to 
visually observe for marine mammals (with any detection within 
specifically designated zones that would trigger a delay or shutdown); 
(3) use of PAM to acoustically detect marine mammals, with a focus on 
detecting baleen whales (with any detection within designated zones 
triggering delay or shutdown); (4) implementation of clearance zones; 
(5) implementation of shutdown zones; (6) use of soft-start; (7) use of 
noise attenuation technology; (8) maintaining situational awareness of 
marine mammal presence through the requirement that any marine mammal 
sighting(s) by Ocean Wind personnel must be reported to PSOs; (9) sound 
field verification monitoring; and (10) Vessel Strike Avoidance 
measures to reduce the risk of a collision with a marine mammal and 
vessel. For cofferdam and goal post installation and removal, we are 
requiring five overarching mitigation measures: (1) seasonal/time of 
day work restrictions; (2) use of multiple PSOs to visually observe for 
marine mammals (with any detection with specifically designated zones 
that would trigger a delay or shutdown); (3) implementation of 
clearance zones; (4) implementation of shutdown zones); and (5) 
maintaining situational awareness of marine mammal presence through the 
requirement that any marine mammal sighting(s) by Ocean Wind personnel 
must be reported to PSOs. Lastly, for HRG surveys, we are requiring six 
measures: (1) measures specifically for Vessel Strike Avoidance; (2) 
specific requirements during daytime and nighttime HRG surveys; (3) 
implementation of clearance zones; (4) implementation of shutdown 
zones; (5) use of ramp-up of acoustic sources; and (6) maintaining 
situational awareness of marine mammal presence through the requirement 
that any marine mammal sighting(s) by Ocean Wind personnel must be 
reported to PSOs.
    NMFS prescribes mitigation measures based on the following 
rationale. For activities with large harassment isopleths, Ocean Wind 
is committed to reducing the noise levels generated to the lowest 
levels practicable and is required to ensure that they do not exceed a 
noise footprint above that which was modeled, assuming a 10-dB 
attenuation. Use of a soft-start during impact pile driving will allow 
animals to move away from (i.e., avoid) the sound source prior to 
applying higher hammer energy levels needed to install the pile (Ocean 
Wind will not use a hammer energy greater than necessary to install 
piles). Similarly, ramp-up during HRG surveys would allow animals to 
move away and avoid the acoustic sources before they reach their 
maximum energy level. For all activities (with some exception for UXO/
MEC detonations, which would not have a shutdown zone), clearance zone 
and shutdown zone implementation, which are required when marine 
mammals are within given distances associated with certain impact 
thresholds for all activities, will reduce the magnitude and severity 
of marine mammal take. Additionally, the use of multiple PSOs (WTG and 
OSS foundation installation, temporary cofferdam and goal post 
installation and removal, UXO/MEC detonations, HRG surveys), PAM 
operators (for impact foundation installation and UXO/MEC detonations), 
and maintaining awareness of marine mammal sightings reported in the 
region (WTG and OSS foundation installation, temporary cofferdam and 
goal post installation and removal, UXO/MEC detonations, HRG surveys) 
will aid in detecting marine mammals that would trigger the 
implementation of the mitigation measures. The reporting requirements 
including SFV reporting (for foundation installation, foundation 
operation, and UXO/MEC detonations), will assist NMFS in identifying if 
impacts beyond those analyzed in this final rule are occurring, 
potentially leading to the need to enact adaptive management measures 
in addition to or in place of the mitigation measures.

Mysticetes

    Six mysticete species (comprising six stocks) of cetaceans (North 
Atlantic right whale, blue whale, humpback whale, fin whale, sei whale, 
and minke whale) may be taken by harassment. These species, to varying 
extents, utilize the specified geographic region, including the Project 
Area, for the purposes of migration, foraging, and socializing. 
Mysticetes are in the low-frequency hearing group.
    Behavioral data on mysticete reactions to pile-driving noise are 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying, which is less likely for 
mysticetes in this area), disruption of foraging activities (if they 
are occurring in the area), local masking around the source, associated 
stress responses, and impacts to prey, as well as TTS or PTS in some 
cases.
    Mysticetes encountered in the Project Area are expected to 
primarily be migrating and, to a lesser degree, may be engaged in 
foraging behavior. The extent to which an animal engages in these 
behaviors in the area is species-specific and varies seasonally. Many 
mysticetes are expected to predominantly be migrating through the 
Project Area towards or from feeding ground located further north 
(e.g., southern New England region, Gulf of Maine, Canada). While we 
acknowledged above that mortality, hearing impairment, or displacement 
of mysticete prey species may result locally from impact pile driving 
and UXO/MEC detonations, given the very short duration of and broad 
availability of prey species in the area and the availability of 
alternative suitable foraging habitat for the mysticete species most 
likely to be affected, any impacts on mysticete foraging is expected to 
be minor. Whales temporarily displaced from the Project Area are 
expected to have sufficient remaining feeding habitat available to them 
and would not be prevented from feeding in other areas within the 
biologically important feeding habitats found further north. In 
addition, any displacement of whales or interruption of foraging bouts 
would be expected to be relatively temporary in nature.

[[Page 62968]]

    The potential for repeated exposures is dependent upon the 
residency time of whales, with migratory animals unlikely to be exposed 
on repeated occasions and animals remaining in the area to be more 
likely exposed repeatedly. For mysticetes, where relatively low amounts 
of species-specific take by Level B harassment are predicted (compared 
to the abundance of each mysticete species or stock, such as is 
indicated in Table 33) and movement patterns suggest that individuals 
would not necessarily linger in a particular area for multiple days, 
each predicted take likely represents an exposure of a different 
individual; the behavioral impacts would, therefore, be expected to 
occur within a single day within a year--an amount that would clearly 
not be expected to impact reproduction or survival. Species with longer 
residence time in the Project Area may be subject to repeated exposures 
across multiple days.
    In general, for this project, the duration of exposures would not 
be continuous throughout any given day, and pile driving would not 
occur on all consecutive days within a given year due to weather delays 
or any number of logistical constraints Ocean Wind has identified. 
Species-specific analysis regarding potential for repeated exposures 
and impacts is provided below.
    Fin, humpback, minke, and sei whales are the only mysticete species 
for which PTS is anticipated and authorized. As described previously, 
PTS for mysticetes from some project activities may overlap frequencies 
used for communication, navigation, or detecting prey. However, given 
the nature and duration of the activity, the mitigation measures, and 
likely avoidance behavior, any PTS is expected to be of a small degree, 
would be limited to frequencies where pile-driving noise is 
concentrated (i.e., only a small subset of their expected hearing 
range) and would not be expected to impact reproductive success or 
survival.
North Atlantic Right Whale
    North Atlantic right whales are listed as endangered under the ESA 
and as both depleted and strategic stock under the MMPA. As described 
in the Potential Effects to Marine Mammals and Their Habitat section of 
the proposed rule, North Atlantic right whales are threatened by a low 
population abundance, higher than average mortality rates, and lower 
than average reproductive rates. Recent studies have reported 
individuals showing high stress levels (e.g., Corkeron et al., 2017) 
and poor health, which has further implications on reproductive success 
and calf survival (Christiansen et al., 2020; Stewart et al., 2021; 
Stewart et al., 2022). As described below, a UME has been designated 
for North Atlantic right whales. Given this, the status of the North 
Atlantic right whale population is of heightened concern and, 
therefore, merits additional analysis and consideration. No injury or 
mortality is anticipated or authorized for this species.
    For North Atlantic right whales, this rule authorizes up to 14 
takes, by Level B harassment only, over the 5-year period, with a 
maximum annual allowable take of 7 (equating to approximately 2.1 
percent of the stock abundance, if each take were considered to be of a 
different individual), with far lower numbers than that expected in the 
years without foundation installation (e.g., years when only HRG 
surveys would be occurring). The Project Area is known as a migratory 
corridor for North Atlantic right whales and given the nature of 
migratory behavior (e.g., continuous path), as well as the low number 
of total takes, we anticipate that few, if any, of the instances of 
take would represent repeat takes of any individual, though it could 
occur if whales are engaged in opportunistic foraging behavior. Whitt 
et al. (2013) observed two juveniles potentially skim-feeding off the 
coast of Barnegat Bay, New Jersey in January. While opportunistic 
foraging may occur in the Project area, the habitat does not support 
prime foraging habitat.
    The highest density of North Atlantic right whales in the Project 
Area occurs in the winter (Table 7). The Mid-Atlantic, including the 
Project Area, may be a stopover site for migrating North Atlantic right 
whales moving to or from southeastern calving grounds. Migrating North 
Atlantic right whales have been acoustically detected north of the 
Project Area in the New York Bight from February to May and August 
through December (Biedron et al., 2009). Similarly, the waters off the 
coast of New Jersey, including those surrounding the Project Area in 
the New Jersey Wind Energy Area (NJ WEA), have documented North 
Atlantic right whale presence as the area is an important migratory 
route for the species to the northern feeding areas near the Gulf of 
Maine and Georges Banks and to their southern breeding and calving 
grounds off the southeastern U.S. (CETAP, 1982; Knowlton and Kraus, 
2001; Knowlton et al., 2022; Biedron et al., 2009; DoC, 2016b). 
However, comparatively, the area is not known as an important area for 
feeding, breeding, or calving.
    North Atlantic right whales range outside the Project Area for 
their main feeding, breeding, calving activities (Geo-Marine, 2010). 
Additional qualitative observations include animals feeding and 
socializing in New England waters, north of the NJ WEA (Quintana-Rizzo 
et al., 2021). The North Atlantic right whales observed during the 
study period, north of the NJ WEA, were primarily concentrated in the 
northeastern and southeastern sections of the Massachusetts WEA (MA 
WEA) during the summer (June-August) and winter (December-February). 
North Atlantic right whale distribution did shift to the west into the 
Rhode Island/Massachusetts (RI/MA) WEA in the spring (March-May). 
Quintana-Rizzo et al. (2021) found that approximately 23 percent of the 
right whale population is present from December through May, and the 
mean residence time has tripled to an average of 13 days during these 
months. The NJ WEA is not in or near these areas important to feeding, 
breeding, and calving activities.
    In general, North Atlantic right whales in the Project Area are 
expected to be engaging in migratory behavior. Given the species' 
migratory behavior in the Project Area, we anticipate individual whales 
would be typically migrating through the area during most months when 
foundation installation and UXO/MEC detonation would occur (given the 
seasonal restrictions on foundation installation and UXO/MEC 
detonation, rather than lingering for extended periods of time). Other 
work that involves either much smaller harassment zones (e.g., HRG 
surveys) or is limited in amount (e.g., cable landfall construction) 
may also occur during periods when North Atlantic right whales are 
using the habitat for migration. It is important to note the activities 
occurring from December through May that may impact North Atlantic 
right whale would be primarily HRG surveys and the nearshore cofferdam 
and goalpost installation and removal, which would not result in very 
high received levels. Across all years, 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.
    As described in the Description of Marine Mammals in the Geographic 
Area section, 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

[[Page 62969]]

the North Atlantic right whale, the loss of even one individual could 
significantly impact the population. No mortality, serious injury, or 
injury of North Atlantic right whales as a result of the project is 
expected or 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.
    As described in the general Mysticetes section above, foundation 
installation is likely to result in the highest amount of annual take 
and is of greatest concern given loud source levels. This activity 
would likely be limited to up to 116 days over a maximum of 2 years, 
during times when, based on the best available scientific data, North 
Atlantic right whales are less frequently encountered due to their 
migratory behavior. The potential types, severity, and magnitude of 
impacts are also anticipated to mirror that described in the general 
Mysticetes 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 are expected to be sufficiently low-level and localized to 
specific areas as to not meaningfully impact important behaviors such 
as migratory behavior of North Atlantic right whales. These takes are 
expected to result in temporary behavioral reactions, such as slight 
displacement (but not abandonment) of migratory habitat or temporary 
cessation of feeding. Further, given these exposures are generally 
expected to occur to different individual right whales migrating 
through (i.e., many individuals would not be impacted on more than 1 
day in a year), with some subset potentially being exposed on no more 
than a few days within the year, they are unlikely to result in 
energetic consequences that could affect reproduction or survival of 
any individuals.
    Overall, NMFS expects that any behavioral harassment of North 
Atlantic right whales incidental to the specified activities would not 
result in changes to their migration patterns or foraging success, as 
only temporary avoidance of an area during construction is expected to 
occur. As described previously, North Atlantic right whales migrating 
through the Project Area are not expected to remain in this habitat for 
extensive durations, and any temporarily displaced animals would be 
able to return to or continue to travel through and forage in these 
areas once activities have ceased.
    Although acoustic masking may occur in the vicinity of the 
foundation installation activities, based on the acoustic 
characteristics of noise associated with pile driving (e.g., frequency 
spectra, short duration of exposure) and construction surveys (e.g., 
intermittent signals), NMFS expects masking effects to be minimal 
(e.g., impact pile driving) to none (e.g., HRG surveys). In addition, 
masking would likely only occur during the period of time that a North 
Atlantic right whale is in the relatively close vicinity of pile 
driving, which is expected to be intermittent within a day, and 
confined to the months in which North Atlantic right whales are at 
lower densities and primarily moving through the area, anticipated 
mitigation effectiveness, and likely avoidance behaviors. TTS is 
another potential form of Level B harassment that could result in brief 
periods of slightly reduced hearing sensitivity affecting behavioral 
patterns by making it more difficult to hear or interpret acoustic cues 
within the frequency range (and slightly above) of sound produced 
during impact pile driving; however, any TTS would likely be of low 
amount, limited duration, and limited to frequencies where most 
construction noise is centered (below 2 kHz). NMFS expects that right 
whale hearing sensitivity would return to pre-exposure levels shortly 
after migrating through the area or moving away from the sound source.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section of the proposed rule, the distance of the receiver to 
the source influences the severity of response with greater distances 
typically eliciting less severe responses. 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 of the proposed rule, we anticipate 
that course diversion would be of small magnitude. Hence, while some 
avoidance of the pile-driving activities may occur, we anticipate any 
avoidance behavior of migratory North Atlantic right whales would be 
similar to that of gray whales (Tyack et al., 1983), on the order of 
hundreds of meters up to 1 to 2 km. This diversion from a migratory 
path otherwise uninterrupted by the project's activities is not 
expected to result in meaningful energetic costs that would impact 
annual rates of recruitment of survival. NMFS expects that North 
Atlantic right whales would be able to avoid areas during periods of 
active noise production while not being forced out of this portion of 
their habitat.
    North Atlantic right whale presence in the Project Area is year-
round. However, abundance during summer months is lower compared to the 
winter months with spring and fall serving as ``shoulder seasons'' 
wherein abundance waxes (fall) or wanes (spring). Given this year-round 
habitat usage, in recognition that where and when whales may actually 
occur during project activities is unknown as it depends on the annual 
migratory behaviors, NMFS is requiring a suite of mitigation measures 
designed to reduce impacts to North Atlantic right whales to the 
maximum extent practicable. These mitigation measures (e.g., seasonal/
daily work restrictions, vessel separation distances, reduced vessel 
speed) would not only avoid the likelihood of vessel strikes but also 
would minimize the severity of behavioral disruptions by minimizing 
impacts (e.g., through sound reduction using attenuation systems and 
reduced temporal overlap of project activities and North Atlantic right 
whales). This would further ensure that the number of takes by Level B 
harassment that are estimated to occur are not expected to affect 
reproductive success or survivorship by detrimental impacts to energy 
intake or cow/calf interactions during migratory transit. However, even 
in consideration of recent habitat-use and distribution shifts, Ocean 
Wind would still be installing foundations when the presence of North 
Atlantic right whales is expected to be lower.
    As described in the Description of Marine Mammals in the Geographic 
Area section, Ocean Wind would be constructed within the North Atlantic 
right whale migratory corridor BIA, which represent areas and months 
within which a substantial portion of a species or population is known 
to migrate. The Lease Area is relatively small compared with the 
migratory BIA area (approximately 277 km\2\ for OCS-A 0498 versus the 
size of the full North Atlantic right whale migratory BIA, 269,448 
km\2\). Because of this, the overall North Atlantic right whale 
migration is not expected to be

[[Page 62970]]

impacted by the proposed activities. There are no known North Atlantic 
right whale feeding, breeding, or calving areas within the Project 
Area. Prey species are mobile (e.g., calanoid copepods can initiate 
rapid and directed escape responses) and are broadly distributed 
throughout the Project Area (noting again that North Atlantic right 
whale prey is not particularly concentrated in the Project Area 
relative to nearby habitats). Therefore, any impacts to prey that may 
occur are also unlikely to impact marine mammals.
    The most significant measure to minimize impacts to individual 
North Atlantic right whales is the seasonal moratorium on all 
foundation installation activities from January 1 through April 30, and 
the limitation on these activities in December (e.g., only work with 
approval from NMFS), when North Atlantic right whale abundance in the 
Project Area is expected to be highest. NMFS also expects this measure 
to greatly reduce the potential for mother-calf pairs to be exposed to 
impact pile driving noise above the Level B harassment threshold during 
their annual spring migration through the Project Area from calving 
grounds to primary foraging grounds (e.g., Cape Cod Bay). UXO/MEC 
detonations would also be restricted from November 1 through April 30, 
annually. NMFS expects that exposures to North Atlantic right whales 
would be reduced due to the additional mitigation measures that would 
ensure that any exposures above the Level B harassment threshold would 
result in only short-term effects to individuals exposed.
    Pile driving and UXO/MEC detonations may only begin in the absence 
of North Atlantic right whales (based on visual and passive acoustic 
monitoring). If pile driving or UXO/MEC detonations have commenced, 
NMFS anticipates North Atlantic right whales would avoid the area, 
utilizing nearby waters to carry on pre-exposure behaviors. However, 
foundation installation activities must be shut down if a North 
Atlantic right whale is sighted at any distance unless a shutdown is 
not feasible due to risk of injury or loss of life. Shutdown may occur 
anywhere if North Atlantic right whales are seen within or beyond the 
Level B harassment zone, further minimizing the duration and intensity 
of exposure. NMFS anticipates that if North Atlantic right whales go 
undetected and they are exposed to foundation installation or UXO/MEC 
detonation noise, it is unlikely a North Atlantic right whale would 
approach the sound source locations to the degree that they would 
purposely expose themselves to very high noise levels. This is because 
typical observed whale behavior demonstrates likely avoidance of 
harassing levels of sound where possible (Richardson et al., 1985). 
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 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 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, NMFS 
requires the combination of PAM and visual observers. NMFS is requiring 
communication protocols with other project vessels, and other 
heightened awareness efforts (e.g., daily monitoring of North Atlantic 
right whale sighting databases) such that as a North Atlantic right 
whale approaches the source (and thereby could be exposed to higher 
noise energy levels), PSO detection efficacy would increase, the whale 
would be detected, and a delay to commencing foundation installation or 
shutdown (if feasible) would occur. In addition, the implementation of 
a soft-start for impact pile driving would provide an opportunity for 
whales to move away from the source if they are undetected, reducing 
received levels. The UXO/MEC detonations mitigation measures described 
above would further reduce the potential to be exposed to high received 
levels.
    For HRG surveys, the maximum distance to the Level B harassment 
threshold is 141 m. The estimated take, by Level B harassment only, 
associated with HRG surveys is to account for any North Atlantic right 
whale sightings PSOs may miss when HRG acoustic sources are active. 
However, because of the short maximum distance to the Level B 
harassment threshold, the requirement that vessels maintain a distance 
of 500 m from any North Atlantic right whales, the fact that whales are 
unlikely to remain in close proximity to an HRG survey vessel for any 
length of time, and that the acoustic source would be shut down if a 
North Atlantic right whale is observed within 500 m of the source, any 
exposure to noise levels above the harassment threshold (if any) would 
be very brief. To further minimize exposures, ramp-up of sub-bottom 
profilers must be delayed during the clearance period if PSOs detect a 
North Atlantic right whale (or any other ESA-listed species) within 500 
m of the acoustic source. With implementation of the mitigation 
requirements, take by Level A harassment is unlikely and, therefore, 
not authorized. Potential impacts associated with Level B harassment 
would include low-level, temporary behavioral modifications, most 
likely in the form of avoidance behavior. Given the high level of 
precautions taken to minimize both the amount and intensity of Level B 
harassment on North Atlantic right whales, it is unlikely that the 
anticipated low-level exposures would lead to reduced reproductive 
success or survival.
    As described above, no serious injury or mortality, or Level A 
harassment, of North Atlantic right whale is anticipated or allowed. 
Extensive North Atlantic right whale-specific mitigation measures 
(beyond the robust suite required for all species) are expected to 
further minimize the amount and severity of Level B harassment. Given 
the documented habitat use within the area, the majority of the 
individuals predicted taken (including no more than 14 instances of 
take, by Level B harassment only, over the course of the 5-year rule, 
with an annual maximum of no more than 7) would be impacted on only 1, 
or maybe 2, days in a year as North Atlantic right whales utilize this 
area for migration and would be transiting rather than residing in the 
area for extended periods of time; and, further, any impacts to North 
Atlantic right whales are expected to be in the form of lower-level 
behavioral disturbance. Given the magnitude and severity of the impacts 
discussed above, and in consideration of the required mitigation and 
other information presented, Ocean Wind's activities are 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 that the take (by Level B 
harassment only) anticipated and authorized would have a negligible 
impact on the North Atlantic right whale.
Blue Whale
    The blue whale is listed as Endangered under the ESA, and the 
western North Atlantic stock is considered Depleted and Strategic under 
the MMPA. There are no known areas of specific biological importance in 
or around the Project Area, and there is no ongoing UME. The actual 
abundance of the stock is likely significantly greater than what is 
reflected in the SAR because the most recent population estimates are 
primarily based on surveys conducted in U.S. waters and the stock's 
range

[[Page 62971]]

extends well beyond the U.S. exclusive economic zone (EEZ). No serious 
injury or mortality is anticipated or authorized for this species.
    The rule authorizes up to four takes, by Level B harassment only, 
over the 5-year period. The maximum annual allowable take by Level B 
harassment, four, respectively (combined, this annual take (n=4) 
equates to approximately 0.97 percent of the stock abundance, if each 
take were considered to be of a different individual). Based on the 
migratory nature of blue whales and the fact that there are neither 
feeding nor reproductive areas documented in or near the Project Area, 
and in consideration of the very low number of predicted annual takes, 
it is unlikely that the predicted instances of takes would represent 
repeat takes of any individual--in other words, each take likely 
represents one whale exposed on 1 day within a year.
    With respect to the severity of those individual takes by Level B 
harassment, we would anticipate impacts to be limited to low-level, 
temporary behavioral responses with avoidance and potential masking 
impacts in the vicinity of the turbine installation to be the most 
likely type of response. Any potential TTS would be 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 blue whales. Any hearing ability temporarily impaired from TTS 
is anticipated to return to pre-exposure conditions within a relatively 
short time period after the exposures cease. Any avoidance of the 
Project Area due to the activities would be expected to be temporary.
    Given the magnitude and severity of the impacts discussed above and 
in consideration of the required mitigation and other information 
presented, Ocean Wind's activities are 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 that the take by Level B harassment anticipated and 
authorized will have a negligible impact on the western North Atlantic 
stock of blue whales.
Fin Whale
    The fin whale is listed as Endangered under the ESA, and the 
western North Atlantic stock is considered both Depleted and Strategic 
under the MMPA. No UME has been designated for this species or stock. 
No serious injury or mortality is anticipated or authorized for this 
species.
    The rule authorizes up to 30 takes, by harassment only, over the 5-
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be 4 and 13, respectively (combined, this 
annual take (n=17) equates to approximately 0.25 percent of the stock 
abundance, if each take were considered to be of a different 
individual), with far lower numbers than that expected in the years 
without foundation installation (e.g., years when only HRG surveys 
would be occurring). The Project Area does not overlap any known areas 
of specific biological importance to fin whales. It is likely that some 
subset of the individual whales exposed could be taken several times 
annually.
    Level B harassment is expected to be in the form of behavioral 
disturbance, primarily resulting in avoidance of the Project Area where 
foundation installation is occurring, and some low-level TTS and 
masking that may limit the detection of acoustic cues for relatively 
brief periods of time. Any potential PTS would be minor (limited to a 
few dB) and any TTS would be of short duration and concentrated at half 
or one octave above the frequency band of pile-driving noise (most 
sound is below 2 kHz) which does not include the full predicted hearing 
range of fin whales.
    Fin whales are present in the waters off of New Jersey year round 
and are one of the most frequently observed large whales and cetaceans 
in continental shelf waters, principally from Cape Hatteras in the Mid-
Atlantic northward to Nova Scotia, Canada (Sergeant, 1977; Sutcliffe 
and Brodie, 1977; CETAP, 1982; Hain et al., 1992; Geo-Marine, 2010; 
BOEM 2012; Edwards et al., 2015; Hayes et al., 2022). Fin whales have 
high relative abundance in the Mid-Atlantic and Project Area, most 
observations occur in the winter and summer months (Geo-Marine, 2010; 
Hayes et al., 2022) though detections do occur in spring and fall 
(Watkins et al., 1987; Clark and Gagnon 2002; Geo-Marine, 2010; Morano 
et al., 2012). However, fin whales typically feed in waters off of New 
England and within the Gulf of Maine, areas north of the Project Area, 
as New England and Gulf of St. Lawrence waters represent major feeding 
ground for fin whales (Hayes et al., 2022). Hain et al. (1992), based 
on an analysis of neonate stranding data, suggested that calving takes 
place during October to January in latitudes of the U.S. mid-Atlantic 
region; however, it is unknown where calving, mating, and wintering 
occur for most of the population (Hayes et al., 2022).
    Given the documented habitat use within the area, some of the 
individuals taken would likely be exposed on multiple days. However, as 
described the project area does not include areas where fin whales are 
known to concentrate for feeding or reproductive behaviors and the 
predicted takes are expected to be in the form of lower-level impacts. 
Given the magnitude and severity of the impacts discussed above 
(including no more than 30 takes by harassment only over the course of 
the 5-year rule, and a maximum annual allowable take by Level A 
harassment and Level B harassment, of 4 and 13, respectively), and in 
consideration of the required mitigation and other information 
presented, Ocean Wind's activities are 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 that the take by harassment anticipated and authorized 
will have a negligible impact on the western North Atlantic stock of 
fin whales.
Humpback Whale
    The West Indies DPS of humpback whales is not listed as threatened 
or endangered under the ESA, but the Gulf of Maine stock, which 
includes individuals from the West Indies DPS, is considered Strategic 
under the MMPA. However, as described in the Description of Marine 
Mammals in the Geographic Area section of this preamble, 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 40 percent had evidence of human interaction 
(vessel strike or entanglement). The UME does not yet provide cause for 
concern regarding population-level impacts and take from vessel strike 
and entanglement is not authorized. Despite the UME, the relevant 
population of humpback whales (the West Indies breeding population, or 
DPS of which the Gulf of Maine stock is a part) remains stable at 
approximately 12,000 individuals.
    The rule authorizes up to 88 takes by harassment only over the 5-
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be 8 and 66, respectively (combined, this 
maximum annual take (n=74) equates to approximately 5.3 percent of the 
stock abundance, if each take were considered to be of a different 
individual), with far lower numbers than that expected in the

[[Page 62972]]

years without foundation installation (e.g., years when only HRG 
surveys would be occurring). Given that humpback whales are known to 
forage off of New Jersey, it is likely that some subset of the 
individual whales exposed could be taken several times annually.
    Among the activities analyzed, impact pile driving is likely to 
result in the highest amount of Level A harassment annual take (seven) 
of humpback whales. The maximum amount of annual take authorized, by 
Level B harassment, is highest for impact pile driving (n=60; WTGs plus 
OSS pin piles).
    As described in the Description of Marine Mammals in the Geographic 
Area section, Humpback whales are known to occur regularly throughout 
the Mid-Atlantic Bight, including New Jersey waters, with strong 
seasonality where peak occurrences occur April to June (Barco et al., 
2002; Geo-Marine, 2010; Curtice et al., 2019; Hayes et al., 2022).
    In the western North Atlantic, humpback whales feed during spring, 
summer, and fall over a geographic range encompassing the eastern coast 
of the U.S. Feeding is generally considered to be focused in areas 
north of the project area, including a feeding BIA in the Gulf of 
Maine/Stellwagen Bank/Great South Channel, 47,701, but has been 
documented farther south and off the coast of New Jersey. When 
foraging, humpback whales tend to remain in the area for extended 
durations to capitalize on the food sources.
    Assuming humpback whales who are feeding in waters within or 
surrounding the Project Area behave similarly, we expect that the 
predicted instances of disturbance could be comprised of some 
individuals that may be exposed on multiple days if they are utilizing 
the area as foraging habitat. Also similar to other baleen whales, if 
migrating, such individuals would likely be exposed to noise levels 
from the project above the harassment thresholds only once during 
migration through the Project Area.
    For all the reasons described in the Mysticetes section above, we 
anticipate any potential PTS and TTS would 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 relatively shortly after exposure ends. 
Any masking or physiological responses would also be of low magnitude 
and severity for reasons described above.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 88 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of 8 and 66, respectively), and in consideration of the 
required mitigation measures and other information presented, Ocean 
Wind's activities are 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 
that the take by harassment anticipated and authorized will have a 
negligible impact on the Gulf of Maine stock of humpback whales.
Minke Whale
    Minke whales are not listed under the ESA, and the Canadian East 
Coast stock is neither considered Depleted nor strategic under the 
MMPA. There are no known areas of specific biological importance in or 
adjacent to the Project Area. As described in the Description of Marine 
Mammals in the Geographic Area section, a UME has been designated for 
this species but is pending closure. No serious injury or mortality is 
anticipated or authorized for this species.
    The rule authorizes up to 141 takes, by harassment only, over the 
5-year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be 22 and 74, respectively (combined, 
this annual take (n=96) equates to approximately 0.44 percent of the 
stock abundance, if each take were considered to be of a different 
individual), with far lower numbers than that expected in the years 
without foundation installation (e.g., years when only HRG surveys 
would be occurring). As described in the Description of Marine Mammals 
in the Geographic Area section, Minke whales are common offshore the 
U.S. Eastern Seaboard with a strong seasonal component in the 
continental shelf and in deeper, off-shelf waters (CETAP, 1982; Hayes 
et al., 2022). In the Project area, minke whales are predominantly 
migratory and their known feeding areas are north, including a feeding 
BIA in the southwestern Gulf of Maine and George's Bank. Therefore, 
they would be more likely to be moving through (with each take 
representing a separate individual), though it is possible that some 
subset of the individual whales exposed could be taken up to a few 
times annually.
    As described in the Description of Marine Mammals in the Geographic 
Area section, there is a UME for Minke whales, along the Atlantic coast 
from Maine through South Carolina, with highest number of deaths in 
Massachusetts, Maine, and New York, and preliminary findings in several 
of the whales have shown evidence of human interactions or infectious 
diseases. However, we note that the population abundance is greater 
than 21,000 and the take authorized through this action is not expected 
to exacerbate the UME in any way.
    We anticipate the impacts of this harassment to follow those 
described in the general Mysticetes section above. Any potential PTS 
would be minor (limited to a few dB) and any TTS would be of short 
duration and concentrated at half or one octave above the frequency 
band of pile-driving noise (most sound is below 2 kHz) which does not 
include the full predicted hearing range of minke whales. Level B 
harassment would be temporary, with primary impacts being temporary 
displacement of the Project Area but not abandonment of any migratory 
or foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 141 takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment, of 22 and 74, respectively), and in consideration of the 
required mitigation and other information presented, Ocean Wind's 
activities are 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 that the 
take by harassment anticipated and authorized will have a negligible 
impact on the Canadian Eastern Coastal stock of minke whales.
Sei Whale
    Sei whales are listed as Endangered under the ESA, and the Nova 
Scotia stock is considered both Depleted and Strategic under the MMPA. 
There are no known areas of specific biological importance in or 
adjacent to the Project Area and no UME has been designated for this 
species or stock. No serious injury or mortality is anticipated or 
authorized for this species.
    The rule authorizes up to seven takes, by harassment only, over the 
5-year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be one and three, respectively (combined, 
this annual take (n=4) equates to approximately 0.6 percent of the 
stock abundance, if each take were considered to be of a different 
individual). As described in the Description of Marine Mammals in the 
Geographic Area section, most of the sei whale distribution is 
concentrated in

[[Page 62973]]

Canadian waters and seasonally in northerly U.S. waters, though they 
are uncommonly observed in the waters off of New Jersey. Because sei 
whales are migratory and their known feeding areas are east and north 
of the Project Area (e.g., there is a feeding BIA in the Gulf of 
Maine), they would be more likely to be moving through and, considering 
this and the very low number of total takes, it is unlikely that any 
individual would be exposed more than once within a given year.
    With respect to the severity of those individual takes by 
behavioral Level B harassment, we would anticipate impacts to be 
limited to low-level, temporary behavioral responses with avoidance and 
potential masking impacts in the vicinity of the turbine installation 
to be the most likely type of response. Any potential PTS and TTS would 
likely 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 sei whales. Moreover, any 
TTS would be of a small degree. Any avoidance of the Project Area due 
to the Project's activities would be expected to be temporary.
    Given the magnitude and severity of the impacts discussed above 
(including no more than seven takes of the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of one and three, respectively), and in consideration of 
the required mitigation and other information presented, Ocean Wind's 
activities are 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 that the 
take by harassment anticipated and authorized will have a negligible 
impact on the Nova Scotia stock of sei whales.
Odontocetes
    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below. Odontocetes include 
dolphins, porpoises, and all other whales possessing teeth, and we 
further divide them into the following subsections: sperm whales, small 
whales and dolphins, and harbor porpoise. These sub-sections include 
more specific information, as well as conclusions for each stock 
represented.
    All of the takes of odontocetes authorized incidental to Ocean 
Wind's specified activities are by pile driving, UXO/MEC detonations, 
and HRG surveys. No serious injury or mortality is anticipated or 
proposed. We anticipate that, given ranges of individuals (i.e., that 
some individuals remain within a small area for some period of time), 
and non-migratory nature of some odontocetes in general (especially as 
compared to mysticetes), these takes are more likely to represent 
multiple exposures of a smaller number of individuals than is the case 
for mysticetes, though some takes may also represent one-time exposures 
to an individual. Foundation installation is likely to disturb 
odontocetes to the greatest extent, compared to UXO/MEC detonations and 
HRG surveys. While we expect animals to avoid the area during 
foundation installation and UXO/MEC detonations, their habitat range is 
extensive compared to the area ensonified during these activities. In 
addition, as described above, UXO/MEC detonations are instantaneous; 
therefore, any disturbance would be very limited in time.
    As described earlier, Level B harassment may include direct 
disruptions in behavioral patterns (e.g., avoidance, changes in 
vocalizations (from masking) or foraging), as well as those associated 
with stress responses or TTS. Odontocetes are highly mobile species and 
similar to mysticetes, NMFS expects any avoidance behavior to be 
limited to the area near the sound source. While masking could occur 
during foundation installation, it would only occur in the vicinity of 
and during the duration of the activity, and would not generally occur 
in a frequency range that overlaps most odontocete communication or any 
echolocation signals. The mitigation measures (e.g., use of sound 
attenuation systems, implementation of clearance and shutdown zones) 
would also minimize received levels such that the severity of any 
behavioral response would be expected to be less than exposure to 
unmitigated noise exposure.
    Any masking or TTS effects are anticipated to be of low-severity. 
First, the frequency range of pile driving, the most impactful activity 
proposed to be conducted in terms of response severity, falls within a 
portion of the frequency range of most odontocete vocalizations. 
However, odontocete vocalizations span a much wider range than the low 
frequency construction activities planned for the project. As described 
above, recent studies suggest odontocetes have a mechanism to self-
mitigate (i.e., reduce hearing sensitivity) the impacts of noise 
exposure, which could potentially reduce TTS impacts. Any masking or 
TTS is anticipated to be limited and would typically only interfere 
with communication within a portion of an odontocete's range and as 
discussed earlier, the effects would only be expected to be of a short 
duration and, for TTS, a relatively small degree.
    Furthermore, odontocete echolocation occurs predominantly at 
frequencies significantly higher than low frequency construction 
activities. Therefore, there is little likelihood that threshold shift 
would interfere with feeding behaviors. For HRG surveys, the sources 
operate at higher frequencies than foundation installation activities 
and UXO/MEC detonations. However, sounds from these sources attenuate 
very quickly in the water column, as described above. Therefore, any 
potential for PTS and TTS and masking is very limited. Further, 
odontocetes (e.g., common dolphins, spotted dolphins, bottlenose 
dolphins) have demonstrated an affinity to bow-ride actively surveying 
HRG surveys. Therefore, the severity of any harassment, if it does 
occur, is anticipated to be minimal based on the lack of avoidance 
previously demonstrated by these species.
    The waters off the coast of New 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, 
including the Project Area, do not contain any particularly unique 
odontocete habitat features.
Sperm Whales
    Sperm whales are listed as endangered under the ESA, and the North 
Atlantic stock is considered both Depleted and Strategic under the 
MMPA. The North Atlantic stock 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 across its range (i.e., 
commercial whaling) has been eliminated. Current potential threats to 
the species globally include vessel strikes, entanglement in fishing 
gear, anthropogenic noise, exposure to contaminants, climate change, 
and marine debris. There is no currently reported trend for the stock 
and, although the species is listed as endangered under the ESA, there 
are no specific issues with the status of the stock that cause 
particular concern (e.g., no UMEs). There are no known areas of 
biological importance (e.g., critical habitat or BIAs) in or near the 
Project Area. No mortality or serious injury is anticipated or 
authorized for this species.
    The rule authorizes up to 24 takes, by Level B harassment only over 
the 5-year

[[Page 62974]]

period. The maximum annual allowable take by Level B harassment, would 
be 9, which equates to approximately 0.21 percent of the stock 
abundance, if each take were considered to be of a different 
individual), with lower numbers than that expected in the years without 
foundation installation (e.g., years when only HRG surveys would be 
occurring). Given sperm whale's preference for deeper waters, 
especially for feeding, it is unlikely that individuals will remain in 
the Project Area for multiple days, and therefore, the estimated takes 
likely represent exposures of different individuals on 1 day annually.
    If sperm whales are present in the Project Area during any Project 
activities, they will likely be only transient visitors and not 
engaging in any significant behaviors. Further, the potential for TTS 
is low for reasons described in the general Odontocete section, but if 
it does occur, any hearing shift would be small and of a short 
duration. Because whales are not expected to be foraging in the Project 
Area, any TTS is not expected to interfere with foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 24 takes, by Level B harassment only, over the 
course of the 5-year rule, and a maximum annual allowable take of 9), 
and in consideration of the required mitigation and other information 
presented, Ocean Wind's activities are 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 that the take by harassment anticipated and authorized 
will have a negligible impact on the North Atlantic stock of sperm 
whales.
Dolphins and Small Whales (Including Delphinids)
    The seven species and eight stocks included in this group (which 
are indicated in Table 2 in the Delphinidae family) are not listed 
under the ESA; however, short-finned pilot whales are listed as 
Strategic under the MMPA. There are no known areas of specific 
biological importance in or around the Project Area for any of these 
species and no UMEs have been designated for any of these species. No 
serious injury or mortality is anticipated or authorized for these 
species.
    The seven delphinid species with takes authorized for the Project 
are Atlantic spotted dolphin, Atlantic white-sided dolphin, common 
bottlenose dolphin, common dolphin, long-finned pilot whale, short-
finned pilot whale, and Risso's dolphin. The rule would allow for the 
authorization of 90 to 4,308 takes (depending on species) by Level A 
harassment and Level B harassment, over the five-year period. The 
maximum annual allowable take for these species by Level A harassment 
and Level B harassment, would range from 0 to 11 and 30 to 1,584, 
respectively (this annual take equates to approximately 0.08 to 21.3 
percent of the stock abundance, depending on each species, if each take 
were considered to be of a different individual), with far lower 
numbers than that expected in the years without foundation installation 
(e.g., years when only HRG surveys would be occurring).
    For the coastal stock of bottlenose dolphins, given the higher 
number of takes relative to the stock abundance, while some of the 
takes likely represent exposures of different individuals on 1 day a 
year, it is likely that some subset of the individuals exposed could be 
taken several times annually. For Atlantic spotted dolphin, Atlantic 
white-sided dolphin, common dolphin, the offshore stock of bottlenose 
dolphin, long- and short-finned pilot whale, and Risso's dolphin, given 
the number of takes, while many of the takes likely represent exposures 
of different individuals on 1 day a year, some subset of the 
individuals exposed could be taken up to a few times annually.
    The number of takes, likely movement patterns of the affected 
species, and the intensity of any Level A or B harassments, combined 
with the availability of alternate nearby foraging habitat suggests 
that the likely impacts would not impact the reproduction or survival 
of any individuals. While delphinids may be taken on several occasions, 
none of these species are known to have small home ranges within the 
Project Area or known to be particularly sensitive to anthropogenic 
noise. The potential for PTS in dolphins and small whales is very low 
and, if PTS does occur, would occur to a limited number of individuals, 
be of small degree, and would be limited to the frequency ranges of the 
activity which does not span across most of their hearing range. Some 
TTS can also occur but, again, it would be limited to the frequency 
ranges of the activity and any loss of hearing sensitivity is 
anticipated to return to pre-exposure conditions shortly after the 
animals move away from the source or the source ceases.
    Given the magnitude and severity of the impacts discussed above and 
in consideration of the required mitigation and other information 
presented, Ocean Wind's activities are 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 that the take by harassment anticipated and authorized 
will have a negligible impact on all of the species and stocks 
addressed in this section.
Harbor Porpoises
    Harbor porpoises are not listed as Threatened or Endangered under 
the ESA, and the Gulf of Maine/Bay of Fundy stock is neither considered 
depleted or strategic under the MMPA. The stock is found predominantly 
in northern U.S. coastal waters (less than 150 m depth) and up into 
Canada's Bay of Fundy (between New Brunswick and Nova Scotia). Although 
the population trend is not known, there are no UMEs or other factors 
that cause particular concern for this stock. No mortality or non-
auditory injury are anticipated or authorized for this stock.
    The rule would allow for the authorization of up to 608 takes, by 
harassment only, over the 5-year period. The maximum annual allowable 
take by Level A harassment and Level B harassment, would be 69 and 350, 
respectively (combined, this annual take (n=419) equates to 
approximately 0.44 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HRG surveys would be occurring). Given the number of 
takes, while many of the takes likely represent exposures of different 
individuals on 1 day a year, some subset of the individuals exposed 
could be taken up to a few times annually.
    Regarding the severity of takes by Level B harassment, because 
harbor porpoises are particularly sensitive to noise, it is likely that 
a fair number of the responses could be of a moderate nature, 
particularly to pile driving. In response to pile driving, harbor 
porpoises are likely to avoid the area during construction, as 
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne 
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United 
Kingdom, although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. However, foundation 
installation is scheduled to occur 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 1 UXO/MEC would be detonated on any given day 
and only up to 10 UXO/MEC could be detonated under the LOA, any

[[Page 62975]]

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, TTS is unlikely to impact 
hearing ability in their more sensitive hearing ranges, or the 
frequencies in which they communicate and echolocate. We expect any PTS 
that may occur to be within the very low end of their hearing range 
where harbor porpoises are not particularly sensitive 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.
    As discussed in Hayes et al. (2022), Harbor porpoises are 
seasonally distributed. During fall (October through December) and 
spring (April through June), harbor porpoises are widely dispersed from 
New Jersey to Maine, with lower densities farther north and south. 
During winter (January to March), intermediate densities of harbor 
porpoises can be found in waters off New Jersey to North Carolina, and 
lower densities are found in waters off New York to New Brunswick, 
Canada. In non-summer months they have been seen from the coastline to 
deep waters (>1,800 m; Westgate et al., 1998), although the majority 
are found over the continental shelf. While harbor porpoises are likely 
to avoid the area during any of the project's construction activities, 
as demonstrated during European wind farm construction, the time of 
year in which work would occur is when harbor porpoises are not in 
highest abundance, and any work that does occur would not result in the 
species' abandonment of the waters off of New Jersey.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Ocean Wind's activities are 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 that the take by harassment anticipated and authorized 
will have a negligible impact on the Gulf of Maine/Bay of Fundy stock 
of harbor porpoises.
Phocids (Harbor Seals and Gray Seals)
    The harbor seal and gray seal are not listed under the ESA, and 
neither the western North Atlantic stock of gray seal nor the western 
North Atlantic stock of harbor seal are considered depleted or 
strategic under the MMPA. There are no known areas of specific 
biological importance in or around the Project Area. As described in 
the Description of Marine Mammals in the Geographic Area section, a UME 
has been designated for harbor seals and gray seals and is described 
further below. No serious injury or mortality is anticipated or 
authorized for this species.
    For the two seal species, the rule authorizes up to between 649 and 
1,749 takes for each species by harassment only over the 5-year period. 
The maximum annual allowable take for these species by Level A 
harassment and Level B harassment, would range from 31 to 35 and 305 to 
844 (combined, this annual take (n=336 to 879) equates to approximately 
1.23 to 1.43 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HRG surveys would be occurring). Though gray seals and 
harbor seals are considered migratory and no specific feeding areas 
have been designated in the area, the higher number of takes relative 
to the stock abundance suggests that while some of the takes likely 
represent exposures of different individuals on 1 day a year, it is 
likely that some subset of the individuals exposed could be taken 
several times annually.
    Harbor and gray seals occur in New Jersey waters most often from 
December through April, with harbor seal occurrences more common than 
gray seals (Reynolds, 2021). Seals are more likely to be close to shore 
(e.g., closer to the edge of the area ensonified above NMFS' harassment 
threshold), such that exposure to foundation installation would be 
expected to be at comparatively lower levels. Known haul-outs for seals 
occur near the coastal cofferdam and goal post locations (Oyster Creek, 
Island Beach State Park in Barnegat Bay, Farm Property, and BL 
England). 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 cofferdam locations, NMFS 
does not expect any harassment to occur and has not authorized any take 
from in-air impacts on hauled-out seals.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section in the proposed rule, construction of wind farms in 
Europe resulted in pinnipeds temporarily avoiding construction areas 
but returning within short time frames after construction was complete 
(Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 2015; Russell 
et al., 2016; Brasseur et al., 2010). Effects on pinnipeds that are 
taken by Level B harassment in the Project Area would likely be limited 
to reactions such as increased swimming speeds, increased surfacing 
time, or decreased foraging (if such activity were occurring). Most 
likely, individuals would simply move away from the sound source and be 
temporarily displaced from those areas (Lucke et al., 2006; Edren et 
al., 2010; Skeate et al., 2012; Russell et al., 2016). Given the low 
anticipated magnitude of impacts from any given exposure (e.g., 
temporary avoidance), even repeated Level B harassment across a few 
days of some small subset of individuals, which could occur, is 
unlikely to result in impacts on the reproduction or survival of any 
individuals. Moreover, pinnipeds would benefit from the mitigation 
measures described in 50 CFR part 217--Regulations Governing the Taking 
and Importing of Marine Mammals Incidental to Specified Activities.
    As described above, noise from pile driving is mainly low frequency 
and, while any PTS and TTS that does occur would fall within the lower 
end of pinniped hearing ranges (50 Hz to 86 kHz), PTS and TTS would not 
occur at frequencies around 5 kHz where pinniped hearing is most 
susceptible to noise-induced hearing loss (Kastelein et al., 2018). In 
summary, any PTS and TTS would be of small degree and not occur across 
the entire, or even most sensitive, hearing range. Hence, any impacts 
from PTS and TTS 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 62976]]

harbor seals, the population abundance is over 61,000 and annual 
mortality/serious injury (M/SI) (n=339) is well below PBR (1,729) 
(Hayes et al., 2020). The population abundance for gray seals in the 
United States is over 27,000, with an estimated overall abundance, 
including seals in Canada, of approximately 450,000. In addition, the 
abundance of gray seals is likely increasing in the U.S. Atlantic, as 
well as in Canada (Hayes et al., 2020).
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Ocean Wind's activities are 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 that the take by harassment anticipated and authorized 
will have a negligible impact on harbor and gray seals.
Negligible Impact Determination
    No mortality or serious injury is anticipated to occur or 
authorized. As described in the analysis above, the impacts resulting 
from the project's activities cannot be reasonably expected to, and are 
not reasonably likely to, adversely affect any of the species or stocks 
through effects on annual rates of recruitment or survival. Based on 
the analysis contained herein of the likely effects of the specified 
activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required mitigation and 
monitoring measures, NMFS finds that the marine mammal take from all of 
Ocean Wind's specified activities combined will have a negligible 
impact on all affected marine mammal species or stocks.
Small Numbers
    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals 
estimated to be 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 is authorizing incidental take by Level A harassment and/or 
Level B harassment of 17 species of marine mammals (with 18 managed 
stocks). The maximum number of instances of takes by combined Level A 
harassment and Level B harassment possible within any 1 year relative 
to the best available population abundance is less than one-third for 
all species and stocks potentially impacted.
    For 16 stocks, less than 3 percent of the stock abundance is 
authorized for take by harassment; for 1 stock, less than 6 percent of 
the stock abundance is authorized for take by harassment; and for one 
stock, less than 22 percent of the stock abundance is authorized for 
take by harassment. Specific to the North Atlantic right whale, the 
maximum amount of take, which is by Level B harassment only, is seven, 
or 2.1 percent of the stock abundance, assuming that each instance of 
take represents a different individual. Please see Table 35 for 
information relating to this small numbers analysis.
    Based on the analysis contained herein of the activities (including 
the required mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS 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.
Classification
Endangered Species Act (ESA)
    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency ensure 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 NOAA GARFO.
    The NMFS Office of Protected Resources has authorized 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 requested initiation of section 7 consultation on 
September 12, 2022 with GARFO for the promulgation of the rulemaking. 
NMFS issued a Biological Opinion on April 3, 2023 concluding that the 
promulgation of the rule and issuance of LOAs thereunder is not likely 
to jeopardize the continued existence of threatened and endangered 
species under NMFS' jurisdiction and is not likely to result in the 
destruction or adverse modification of designated or proposed critical 
habitat. The Biological Opinion is available at https://repository.library.noaa.gov/view/noaa/49689.
    The promulgated regulations, as well as requiring the applicant to 
abide by the reasonable and prudent measure and terms and conditions of 
the Biological Opinion and Incidental Take Statement, as issued by 
NMFS.
National Environmental Policy Act (NEPA)
    To comply with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS 
must evaluate our proposed action (i.e., promulgation of regulation) 
and alternatives with respect to potential impacts on the human 
environment. NMFS participated as a cooperating agency on the BOEM 2023 
Final Environmental Impact Statement (FEIS), which was finalized on 
July 3, 2023, and is available at https://www.boem.gov/renewable-energy/state-activities/ocean-wind-1. In accordance with 40 CFR 1506.3, 
NMFS independently reviewed and evaluated the 2023 Ocean Wind 1 FEIS 
and determined that it is adequate and sufficient to meet our 
responsibilities under NEPA for the promulgation of this rule and 
issuance of the associated LOA. NMFS, therefore, has adopted the 2023 
Ocean Wind 1 FEIS through a joint Record of Decision (ROD) with BOEM. 
The joint ROD for adoption of the 2023 Ocean Wind 1 FEIS and 
promulgation of this final rule and subsequent issuance of a LOA can be 
found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
Executive Order 12866
    The Office of Management and Budget has determined that this rule 
is not significant for purposes of Executive Order 12866.

[[Page 62977]]

Regulatory Flexibility Act
    Pursuant to the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et 
seq.), the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
Paperwork Reduction Act
    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 Office of Management and Budget (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.
Coastal Zone Management Act (CZMA)
    The Coastal Zone Management Act requires that any applicant for a 
required federal license or permit to conduct an activity, within the 
coastal zone or within the geographic location descriptions (i.e., 
areas outside the coastal zone in which an activity would have 
reasonably foreseeable coastal effects), affecting any land or water 
use or natural resource of the coastal zone be consistent with the 
enforceable policies of a state's federally approved coastal management 
program. NMFS determined that Ocean Wind's application for an 
incidental take regulations is an unlisted activity and, thus, is not 
subject to Federal consistency requirements in the absence of the 
receipt and prior approval of an unlisted activity review request from 
the state by the Director of NOAA's Office for Coastal Management. 
Pursuant to 15 CFR 930.54, NMFS published notice of receipt of Ocean 
Wind's application in the Federal Register on March 7, 2022 (87 FR 
12666) and published notice of the proposed rule on October 26, 2022 
(87 FR 65868). The state of New Jersey did not request approval from 
the Director of NOAA's Office for Coastal Management to review Ocean 
Wind's application as an unlisted activity, and the time period for 
making such request has expired. Therefore, NMFS has determined the 
incidental take authorization is not subject to Federal consistency 
review.

List of Subjects in 50 CFR Part 217

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

    Dated: September 1, 2023.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, NMFS amends 50 CFR part 217 
to read 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.  217.260 through 217.269, to 
read as follows:
Subpart AA--Taking Marine Mammals Incidental to Construction of the 
Ocean Wind 1 Project 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 Monitoring and reporting requirements.
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 Project Offshore of New Jersey


Sec.  217.260  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply to activities associated with 
the Ocean Wind 1 project (hereafter referred to as the ``Project'') by 
Ocean Wind, LLC (hereafter referred to as ``LOA Holder''), and those 
persons it authorizes or funds to conduct activities on its behalf in 
the area outlined in paragraph (b) of this section. Requirements 
imposed on LOA Holder must be implemented by those persons it 
authorizes or funds to conduct activities on its behalf.
    (b) The specified geographical region is the Mid-Atlantic Bight, 
which includes, but is not limited to, the Bureau of Ocean Energy 
Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0498 
Commercial Lease of Submerged Lands for Renewable Energy Development, 
two export cable routes, and two sea-to-shore transition points located 
in New Jersey at Oyster Creek, Island Beach State Park in Barnegat Bay, 
Farm Property, and BL England.
    (c) The specified activities are impact pile driving of wind 
turbine generator (WTGs) and offshore substation (OSSs) foundations; 
vibratory pile driving (install and subsequently remove) of cofferdams 
and goal posts; high-resolution geophysical (HRG) site characterization 
surveys; unexploded ordnances or munitions and explosives of concern 
(UXOs/MECs) detonation; vessel transit within the specified 
geographical region to transport crew, supplies, and materials; WTG 
operation; fishery and ecological monitoring surveys; placement of 
scour protection; and 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.


Sec.  217.261  Effective dates.

    The regulations in this subpart are effective from October 13, 
2023, through October 12, 2028.


Sec.  217.262  Permissible methods of taking.

    Under the LOA, issued pursuant to Sec. Sec.  216.106 and 217.266, 
LOA Holder, and those persons it authorizes or funds to conduct 
activities on its behalf, may incidentally, but not intentionally, take 
marine mammals within the vicinity of BOEM Lease Area OCS-A 0498 
Commercial Lease of Submerged Lands for Renewable Energy Development, 
along export cable routes, and at the two sea-to-shore transition 
points located in New Jersey at Oyster Creek, Island Beach State Park 
in Barnegat Bay, Farm Property, and BL England in the following ways, 
provided LOA Holder is in complete compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate LOA:
    (a) By Level B harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving (WTG and OSS foundation 
installation), vibratory pile driving (cofferdam and

[[Page 62978]]

goal post installation and removal), UXO/MEC detonations, and HRG site 
characterization surveys;
    (b) By Level A harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving of WTG and OSS foundations and 
UXO/MEC detonations;
    (c) Take by mortality or serious injury of any marine mammal 
species is not authorized; and
    (d) The incidental take of marine mammals by the activities listed 
in paragraphs (a) and (b) of this section is limited to the following 
species:

                        Table 1 to Paragraph (d)
------------------------------------------------------------------------
      Marine mammal species         Scientific name          Stock
------------------------------------------------------------------------
North Atlantic right whale......  Eubalaena           Western Atlantic.
                                   glacialis.
Blue whale......................  Balaenoptera        Western North
                                   musculus.           Atlantic.
Fin whale.......................  Balaenoptera        Western North
                                   physalus.           Atlantic.
Humpback whale..................  Megaptera           Gulf of Maine.
                                   novaeangliae.
Minke whale.....................  Balaenoptera        Canadian Eastern
                                   acutorostrata.      Coastal.
Sei whale.......................  Balaenoptera        Nova Scotia.
                                   borealis.
Sperm whale.....................  Physeter            North Atlantic.
                                   macrocephalus.
Atlantic spotted dolphin........  Stenella frontalis  Western North
                                                       Atlantic.
Atlantic white-sided dolphin....  Lagenorhynchus      Western North
                                   acutus.             Atlantic.
Bottlenose dolphin..............  Tursiops truncatus  Western North
                                                       Atlantic--Offshor
                                                       e.
                                                      Northern Migratory
                                                       Coastal.
Common dolphin..................  Delphinus delphis.  Western North
                                                       Atlantic.
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.
Harbor porpoise.................  Phocoena phocoena.  Gulf of Maine/Bay
                                                       of Fundy.
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 or 217.267, it is unlawful for 
any person to do any of the following in connection with the activities 
described in this subpart:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  217.266 
and 217.267;
    (b) Take any marine mammal not specified in Sec.  217.262(d);
    (c) Take any marine mammal specified in the LOA in any manner other 
than as specified in the LOA; or
    (d) Take any marine mammal specified in Sec.  217.262(d), after 
NMFS Office of Protected Resources determines such taking results in 
more than a negligible impact on the species or stocks of such marine 
mammals.


Sec.  217.264  Mitigation requirements.

    When conducting the activities identified in Sec.  217.260(c) 
within the area described in Sec.  217.260(b), LOA Holder must 
implement the mitigation measures contained in this section and any LOA 
issued under Sec. Sec.  217.266 and 217.267. These mitigation measures 
include, but are not limited to:
    (a) General conditions. LOA Holder must comply with the following 
general measures:
    (1) A copy of any issued LOA must be in the possession of LOA 
Holder and its designees, all vessel operators, visual protected 
species observers (PSOs), passive acoustic monitoring (PAM) operators, 
pile driver operators, and any other relevant designees operating under 
the authority of the issued LOA;
    (2) LOA Holder must conduct training for construction, survey, and 
vessel personnel and the marine mammal monitoring team (PSO and PAM 
operators) prior to the start of all in-water construction activities 
in order to explain responsibilities, communication procedures, marine 
mammal detection and identification, mitigation, monitoring, and 
reporting requirements, safety and operational procedures, and 
authorities of the marine mammal monitoring team(s). This training must 
be repeated for new personnel who join the work during the project. A 
description of the training program must be provided to NMFS at least 
60 days prior to the initial training before in-water activities begin. 
Confirmation of all required training must be documented on a training 
course log sheet and reported to NMFS Office of Protected Resources 
prior to initiating project activities;
    (3) Prior to and when conducting any in-water activities and vessel 
operations, LOA Holder personnel and contractors (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 U.S. 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, PSO(s), and PAM operator(s); The marine mammal 
monitoring team must monitor these systems no less than every 4 hours. 
For any UXO/MEC detonation, these systems must be monitored for 24 
hours and immediately prior to blasting;
    (4) Any marine mammal observed by project personnel must be 
immediately communicated to any on-duty PSOs, PAM operator(s), and all 
vessel captains. Any large whale observation or acoustic detection by 
PSOs or PAM operators must be conveyed to all vessel captains;
    (5) For North Atlantic right whales, any visual or acoustic 
detection must trigger a delay to the commencement of pile driving, 
UXO/MEC detonation, and HRG surveys.
    (6) In the event that a large whale is sighted or acoustically 
detected that cannot be confirmed as a non-North Atlantic right whale, 
it must be treated as if it were a North Atlantic right whale for 
purposes of mitigation;
    (7) If a delay to commencing an activity is called for by the Lead 
PSO or PAM operator, LOA Holder must take the required mitigative 
action. If a shutdown of an activity is called for by the Lead PSO or 
PAM operator, LOA Holder must take the required mitigative action 
unless shutdown would result in

[[Page 62979]]

imminent risk of injury or loss of life to an individual, pile refusal, 
or pile instability. Any disagreements between the Lead PSO, PAM 
operator, and the activity operator regarding delays or shutdowns would 
only be discussed after the mitigative action has occurred;
    (8) 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 prior to beginning a specified 
activity, the activity must be delayed. If the activity is ongoing, it 
must be shut down immediately, unless shutdown would result in imminent 
risk of injury or loss of life to an individual, pile refusal, or pile 
instability. The activity must not commence or resume until the 
animal(s) has been confirmed to have left and is on a path away from 
the Level B harassment zone or after 15 minutes for small odontocetes 
and pinnipeds, and 30 minutes for all other species with no further 
sightings;
    (9) For in-water construction heavy machinery activities listed in 
Sec.  217.260(c), if a marine mammal is on a path towards or comes 
within 10 meters (m) (32.8 feet) of equipment, LOA Holder 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;
    (10) All vessels must be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and LOA Holder 
must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS 
Office of Protected Resources;
    (11) By accepting the issued LOA, LOA Holder consents to on-site 
observation and inspections by Federal agency personnel (including NOAA 
personnel) during activities described in this subpart, for the 
purposes of evaluating the implementation and effectiveness of measures 
contained within the LOA and this subpart; and
    (12) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with a PSO, PAM Operator, or vessel crew member acting as an 
observer, or attempt the same. This prohibition includes, but is not 
limited to, any action that interferes with an observer's 
responsibilities, or that creates an intimidating, hostile, or 
offensive environment. Personnel may report any violations to the NMFS 
Office of Law Enforcement.
    (b) Vessel strike avoidance measures. LOA Holder must comply with 
the following vessel strike avoidance measures, unless an emergency 
situation presents a threat to the health, safety, or life of a person 
or when a vessel, actively engaged in emergency rescue or response 
duties, including vessel-in-distress or environmental crisis response, 
requires speeds in excess of 10 kn to fulfill those responsibilities, 
while in the specified geographical region:
    (1) Prior to the start of the Project's activities involving 
vessels, LOA Holder must receive a protected species training that 
covers, at a minimum, identification of marine mammals that have the 
potential to occur where vessels would be operating; detection 
observation methods 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); sighting 
communication protocols; all vessel speed and approach limit mitigation 
requirements (e.g., vessel strike avoidance measures); and information 
and resources available to the project personnel regarding the 
applicability of Federal laws and regulations for protected species. 
This training must be repeated for any new vessel personnel who join 
the Project. 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;
    (2) LOA Holder's vessels, regardless of their vessel's size, must 
maintain a vigilant watch for all marine mammals and slow down, stop 
their vessel, or alter course to avoid striking any marine mammal;
    (3) LOA Holder's 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 (e.g., night vision 
devices, infrared cameras) 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 
trained crew members, as defined in (b)(1) of this subsection.
    (4) LOA Holder must continuously monitor the U.S. Coast Guard VHF 
Channel 16 at the onset of transiting through the duration of 
transiting, over which North Atlantic right whale sightings are 
broadcasted. At the onset of transiting and at least once every 4 
hours, vessel operators and/or trained crew member(s) must also monitor 
the project's Situational Awareness System, WhaleAlert, and relevant 
NOAA information systems such as the Right Whale Sighting Advisory 
System (RWSAS) for the presence of North Atlantic right whales;
    (5) All LOA Holder's vessels must transit at 10 kn or less within 
any active North Atlantic right whale Slow Zone (i.e., Dynamic 
Management Areas (DMAs) or acoustically-triggered slow zone);
    (6) All LOA Holder's vessels, regardless of size, must immediately 
reduce speed to 10 kn or less for at least 24 hours when a North 
Atlantic right whale is sighted at any distance by any project-related 
personnel or acoustically detected by any project-related PAM system. 
Each subsequent observation or acoustic detection in the Project area 
shall trigger an additional 24-hour period. If a North Atlantic right 
whale is reported via any of the monitoring systems (refer back to 
paragraph (b)(4) of this section) within 10 kilometers (km; 6.2 miles 
(mi)) of a transiting vessel(s), that vessel must operate at 10 knots 
(kn; 11.5 miles per hour (mph)) or less for 24 hours following the 
reported detection;
    (7) LOA Holder's vessels, regardless of size, must immediately 
reduce speed to 10 kn or less when any large whale (other than a North 
Atlantic right whale) is observed within 500 meters (m; 1,640 feet 
(ft)) of an underway vessel;
    (8) If LOA Holder's vessel(s) are traveling at speeds greater than 
10 kn (i.e., no speed restrictions are enacted) in a transit corridor 
from a port to the Lease Area, in addition to the required dedicated 
visual observer, LOA Holder 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 kn or 
less for 24 hours following the detection. Each subsequent detection 
shall trigger a 24-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 24 hours;
    (9) LOA Holder's vessels must maintain a minimum separation

[[Page 62980]]

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 kn 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 reduce speed and 
shift the engine to neutral. Engines must not be engaged until the 
whale has moved outside of the vessel's path and beyond 500 m. If a 
whale is observed but cannot be confirmed as a species other than a 
North Atlantic right whale, the vessel operator must assume that it is 
a North Atlantic right whale and take the vessel strike avoidance 
measures described in this paragraph (b)(9) of this section;
    (10) LOA Holder's vessels must maintain a minimum separation 
distance of 100 m (328 ft) from sperm whales and non-North Atlantic 
right whale baleen whales. If one of these species is sighted within 
100 m of a transiting vessel, LOA Holder's vessel must reduce speed and 
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;
    (11) LOA Holder's vessels must maintain a minimum separation 
distance of 50 m (164 ft) from all delphinoid cetaceans and pinnipeds 
with an exception made for those that approach the vessel (i.e., bow-
riding dolphins). If a delphinid cetacean or pinniped is sighted within 
50 m of a transiting vessel, LOA Holder's 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;
    (12) When a marine mammal(s) is sighted while LOA Holder's 
vessel(s) is transiting, 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, slow down, and avoid abrupt 
changes in direction until the animal has left the area). This measure 
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);
    (13) LOA Holder's vessels underway must not divert or alter course 
to approach any marine mammal. If a separation distance is triggered, 
any vessel underway must avoid abrupt changes in course direction and 
transit at 10 kn or less until the animal is outside the relevant 
separation distance;
    (14) LOA Holder is required to abide by other speed and approach 
regulations. Nothing in this subpart exempts vessels from any other 
applicable marine mammal speed and approach regulations;
    (15) LOA Holder must check, daily, for information regarding the 
establishment of mandatory or voluntary vessel strike avoidance areas 
(i.e., DMAs, SMAs, Slow Zones) and any information regarding North 
Atlantic right whale sighting locations;
    (16) LOA Holder must submit a North Atlantic Right Whale Vessel 
Strike Avoidance Plan to NMFS Office of Protected Resources for review 
and approval at least 90 days prior to the planned start of vessel 
activity. The plan must provide details on the vessel-based observer 
and PAM protocols for transiting vessels. If a plan is not submitted or 
approved by NMFS prior to vessel operations, all project vessels 
transiting, year round, must travel at speeds of 10-kn or less. LOA 
Holder must comply with any approved North Atlantic Right Whale Vessel 
Strike Avoidance Plan; and
    (17) Speed over ground will be used to measure all vessel speed 
restrictions.
    (c) WTG and OSS foundation installation. The following requirements 
apply to impact pile driving activities associated with the 
installation of WTG and OSS foundations:
    (1) Impact pile driving must not occur January 1 through April 30. 
Impact pile driving must be avoided to the maximum extent practicable 
in December; however, it may occur if necessary to complete the project 
with prior approval by NMFS;
    (2) Monopiles must be no larger than 11 m in diameter, representing 
the larger end of the monopile design. During all monopile 
installation, the minimum amount of hammer energy necessary to 
effectively and safely install and maintain the integrity of the piles 
must be used. Hammer energies must not exceed 4,000 kilojoules for 
monopile installation. No more than two monopiles may be installed per 
day. Pin piles must be no larger than 5 m in diameter. During all pin 
pile installation, the minimum amount of hammer energy necessary to 
effectively and safely install and maintain the integrity of the piles 
must be used. Hammer energies must not exceed 2,500 kJ for pin pile 
installation. No more than three pin piles may be installed per day;
    (3) LOA Holder may initiate impact pile driving during hours of 
darkness only from June 1 to October 31, annually, in accordance with a 
NMFS-approved Alternative Monitoring Plan for Nighttime Pile Driving;
    (4) For the construction months of May and November (as well as 
December, if approval is granted by NMFS), impact pile driving must 
only be initiated during daylight hours, defined as no later than 1.5 
hours prior to civil sunset and no earlier than 1 hour after civil 
sunrise, and would only be allowed to continue into darkness if 
stopping operations represents a risk to human health, safety, and/or 
pile stability;
    (5) LOA Holder must utilize a soft-start protocol for each impact 
pile driving event of all foundations by performing four to six strikes 
per minute at 10 to 20 percent of the maximum hammer energy, for a 
minimum of 20 minutes;
    (6) Soft-start must occur at the beginning of impact driving and at 
any time following a cessation of impact pile driving of 30 minutes or 
longer;
    (7) LOA Holder must establish clearance and shutdown zones, which 
must be measured using the radial distance around the pile being 
driven. If a marine mammal is detected within or about to enter the 
applicable clearance zones, prior to the beginning of soft-start 
procedures, impact pile driving must be delayed until the animal has 
been visually observed exiting the clearance zone or until a specific 
time period has elapsed with no further sightings. The specific time 
periods are 15 minutes for small odontocetes and pinnipeds, and 30 
minutes for all other species;
    (8) For North Atlantic right whales, any visual observation or 
acoustic detection must trigger a delay to the commencement of pile 
driving. The clearance zone may only be declared clear if no North 
Atlantic right whale acoustic or visual detections have occurred within 
the clearance zone during the 60-minute monitoring period;
    (9) LOA Holder must deploy at least two functional noise abatement 
systems that reduce noise levels to the modeled harassment isopleths, 
assuming 10-dB attenuation, during all impact pile driving:
    (i) A single bubble curtain must not be used;
    (ii) Any bubble curtain(s) must distribute air bubbles using an air 
flow rate of at least 0.5 m\3\/(minute*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 adjust the air supply and operating pressure such that the maximum 
possible sound attenuation

[[Page 62981]]

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 with a bubble curtain ring;
    (v) Construction contractors must train personnel in the proper 
balancing of airflow to the bubble curtain ring. LOA Holder must 
provide NMFS Office of Protected Resources with a bubble curtain 
performance test and maintenance report to review within 72 hours after 
each pile using a bubble curtain is installed. Additionally, a full 
maintenance check (e.g., manually clearing holes) must occur prior to 
each pile being installed;
    (vi) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (c)(9) must occur prior to impact pile 
driving of monopiles. If LOA Holder uses a noise mitigation device in 
addition to the bubble curtain, LOA Holder must maintain similar 
quality control measures as described in this paragraph (c)(9).
    (10) LOA Holder must utilize NMFS-approved PAM systems, as 
described in paragraph(c)(17) of this section. The PAM system 
components (i.e., acoustic buoys) must not be placed closer than 1 km 
to the pile being driven so that the activities do not mask the PAM 
system. LOA Holder must provide an adequate demonstration of and 
justification for the detection range of the system they plan to deploy 
while considering potential masking from concurrent pile-driving and 
vessel noise. The PAM system must be able to detect a vocalization of 
North Atlantic right whales up to 10 km (6.2 mi).
    (11) LOA Holder must utilize PSO(s) and PAM operator(s), as 
described in Sec.  217.265(c). At least three on-duty PSOs must be on 
the pile driving platform. Additionally, two dedicated-PSO vessels must 
be used at least 60 minutes before, during, and 30 minutes after all 
pile driving, and each dedicated-PSO vessel must have at least three 
PSOs on duty during these time periods. LOA Holder may request NMFS 
approval to use alternative technology (e.g., drones) in lieu of one or 
two of the dedicated PSO vessels that provide similar marine mammal 
detection capabilities.
    (12) If a marine mammal is detected (visually or acoustically) 
entering or within the respective shutdown zone after pile driving has 
begun, the PSO or PAM operator must call for a shutdown of pile driving 
and LOA Holder must stop pile driving immediately, unless shutdown is 
not practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals, or the lead engineer determines there is 
pile refusal or pile instability. If pile driving is not shutdown in 
one of these situations, LOA Holder must reduce hammer energy to the 
lowest level practicable and the reason(s) for not shutting down must 
be documented and reported to NMFS Office of Protected Resources within 
the applicable monitoring reports (e.g., weekly, monthly).
    (13) A visual observation or acoustic detection of a North Atlantic 
right whale at any distance triggers shutdown requirements under 
paragraph (c)(12) of this section. 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 has neither been 
visually or acoustically detected for 30 minutes;
    (14) If pile driving has been shut down due to the presence of a 
marine mammal other than a North Atlantic right whale, pile driving 
must not restart until either the marine mammal(s) has voluntarily left 
the specific clearance zones and has been visually or acoustically 
confirmed beyond that clearance zone, or, when specific time periods 
have elapsed with no further sightings or acoustic detections have 
occurred. The specific time periods are 15 minutes for small 
odontocetes and pinnipeds, and 30 minutes for all other marine mammal 
species. In cases where these criteria are not met, pile driving may 
restart only if necessary to maintain pile stability at which time LOA 
Holder must use the lowest hammer energy practicable to maintain 
stability;
    (15) LOA Holder must conduct sound field verification (SFV) 
measurements during pile driving activities associated with the 
installation of, at minimum, the first three monopile foundations. SFV 
measurements must continue until at least three consecutive piles 
demonstrate noise levels are at or below those modeled, assuming 10 
decibels (dB) of attenuation. Subsequent SFV measurements are also 
required should larger piles be installed or if additional piles are 
driven that may produce louder sound fields than those previously 
measured (e.g., higher hammer energy, greater number of strikes, etc.). 
SFV measurements must be conducted as follows:
    (i) Measurements must be made at a minimum of four distances from 
the pile(s) being driven, along a single transect, in the direction of 
lowest transmission loss (i.e., projected lowest transmission loss 
coefficient), including, but not limited to, 750 m (2,460 ft) and three 
additional ranges selected such that measurement of Level A harassment 
and Level B harassment isopleths are accurate, feasible, and avoids 
extrapolation. At least one additional measurement at an azimuth 90 
degrees from the array at 750 m must be made. At each location, there 
must be a near bottom and mid-water column hydrophone (measurement 
systems);
    (ii) The recordings must be continuous throughout the duration of 
all pile driving of each foundation;
    (iii) The SFV measurement systems must have a sensitivity 
appropriate for the expected sound levels from pile driving received at 
the nominal ranges throughout the installation of the pile. The 
frequency range of SFV measurement systems must cover the range of at 
least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems 
must be designed to have omnidirectional sensitivity so that the 
broadband received level of all pile driving exceeds the system noise 
floor by at least 10 dB. The dynamic range of the SFV measurement 
system must be sufficient such that at each location, and the signals 
avoid poor signal-to-noise ratios for low amplitude signals and avoid 
clipping, nonlinearity, and saturation for high amplitude signals;
    (iv) All hydrophones used in SFV measurements systems are required 
to have undergone a full system, traceable laboratory calibration 
conforming to International Electrotechnical Commission (IEC) 60565, or 
an equivalent standard procedure, from a factory or accredited source 
to ensure the hydrophone receives accurate sound levels, at a date not 
to exceed 2 years before deployment. Additional in-situ calibration 
checks using a pistonphone are required to be performed before and 
after each hydrophone deployment. If the measurement system employs 
filters via hardware or software (e.g., high-pass, low-pass, etc.), 
which is not already accounted for by the calibration, the filter 
performance (i.e., the filter's frequency response) must be known, 
reported, and the data corrected before analysis.
    (v) LOA Holder must be prepared with additional equipment 
(hydrophones, recording devices, hydrophone calibrators, cables, 
batteries, etc.), which exceeds the amount of equipment necessary to 
perform the measurements, such that technical issues can be mitigated 
before measurement;
    (vi) LOA Holder must submit 48-hour interim reports after each 
foundation is

[[Page 62982]]

measured (see Sec.  217.265(g) section for interim and final reporting 
requirements);
    (vii) LOA Holder must not exceed modeled distances to NMFS marine 
mammal Level A harassment and Level B harassment thresholds, assuming 
10-dB attenuation, for foundation installation. If any of the interim 
SFV measurement reports submitted for the first three monopiles 
indicate the modeled distances to NMFS marine mammal Level A harassment 
and Level B harassment thresholds assuming 10-dB attenuation, then LOA 
Holder must implement additional sound attenuation measures on all 
subsequent foundations. LOA Holder must also increase clearance and 
shutdown zone sizes to those identified by NMFS until SFV measurements 
on at least three additional foundations demonstrate acoustic distances 
to harassment thresholds meet or are less than those modeled assuming 
10-dB of attenuation. LOA Holder must optimize the sound attenuation 
systems (e.g., ensure hose maintenance, pressure testing, etc.) to meet 
noise levels modeled, assuming 10-dB attenuation, within three piles or 
else foundation installation activities must cease until NMFS and LOA 
Holder can evaluate the situation and ensure future piles must not 
exceed noise levels modeled assuming 10-dB attenuation;
    (viii) If, after additional measurements conducted pursuant to 
requirements of paragraph (15)(vii) of this section, 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), LOA Holder 
may request to NMFS Office of Protected Resources a modification of the 
clearance and shutdown zones. For NMFS Office of Protected Resources to 
consider a modification request for reduced zone sizes, LOA Holder must 
have conducted SFV measurements on an additional three foundations and 
ensure that subsequent foundations would be installed under conditions 
that are predicted to produce smaller harassment zones than those 
modeled assuming 10-dB of attenuation;
    (ix) LOA Holder must conduct SFV measurements upon commencement of 
turbine operations to estimate turbine operational source levels, in 
accordance with a NMFS-approved Foundation Installation Pile Driving 
SFV Plan. SFV must be conducted in the same manner as previously 
described in paragraph (c)(15) of this section, with appropriate 
adjustments to measurement distances, number of hydrophones, and 
hydrophone sensitivities being made, as necessary; and
    (x) LOA Holder must submit a SFV Plan to NMFS Office of Protected 
Resources for review and approval at least 180 days prior to planned 
start of foundation installation activities and abide by the Plan if 
approved. At minimum, the SFV Plan must describe how LOA Holder would 
ensure that the first three monopile foundation installation sites 
selected for SFV measurements are representative of the rest of the 
monopile installation sites such that future pile installation events 
are anticipated to produce similar sound levels to those piles 
measured. In the case that these sites/scenarios are not determined to 
be representative of all other pile installation sites, LOA Holder must 
include information in the SFV Plan on how additional sites/scenarios 
would be selected for SFV measurements. The SFV Plan must also include 
methodology for collecting, analyzing, and preparing SFV measurement 
data for submission to NMFS Office of Protected Resources and describe 
how the effectiveness of the sound attenuation methodology would be 
evaluated based on the results. SFV for pile driving may not occur 
until NMFS approves the SFV Plan for this activity.
    (16) LOA Holder must submit a Foundation Installation Pile Driving 
Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for 
review and approval at least 180 days prior to planned start of pile 
driving and abide by the Plan if approved. LOA Holder must obtain both 
NMFS Office of Protected Resources and NMFS Greater Atlantic Regional 
Fisheries Office Protected Resources Division's concurrence with this 
Plan prior to the start of any pile driving. The Plan must include a 
description of all monitoring equipment and PAM and PSO protocols 
(including number and location of PSOs) for all pile driving. No 
foundation pile installation can occur without NMFS' approval of the 
Plan; and
    (17) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM 
Plan) to NMFS Office of Protected Resources for review and approval at 
least 180 days prior to the planned start of foundation installation 
activities (impact pile driving) and abide by the Plan if approved. The 
PAM Plan must include a description of all proposed PAM equipment, 
address how the proposed passive acoustic monitoring must follow 
standardized measurement, processing methods, reporting metrics, and 
metadata standards for offshore wind. The Plan must describe all 
proposed PAM equipment, procedures, and protocols including proof that 
vocalizing North Atlantic right whales will be detected within the 
clearance and shutdown zones. No pile installation can occur if LOA 
Holder's PAM Plan does not receive approval from NMFS Office of 
Protected Resources and NMFS Greater Atlantic Regional Fisheries Office 
Protected Resources Division.
    (d) Cofferdam and goal post installation and removal. The following 
requirements apply to the installation and removal of cofferdams and 
goal posts at the cable landfall construction sites:
    (1) Installation and removal of cofferdams and goal posts must not 
occur during nighttime hours (defined as the hours between 1.5 hours 
prior to civil sunset and 1 hour after civil sunrise);
    (2) All installation and removal of sheet piles for cofferdams and 
casing pipes for goal posts must only occur for up to 12 hours for each 
cofferdam and up to 1 hour daily for each goal post (within a single 
24-hour period);
    (3) LOA Holder must establish and implement clearance zones for the 
installation and removal of cofferdams and goal posts using visual 
monitoring. These zones must be measured using the radial distance from 
the cofferdam and goal post being installed and/or removed;
    (4) LOA Holder must utilize PSO(s), as described in Sec.  
217.265(d). At least two on-duty PSOs must monitor for marine mammals 
at least 30 minutes before, during, and 30 minutes after vibratory pile 
driving associated with cofferdam and casing pipe installation; and
    (5) If a marine mammal is observed entering or within the 
respective shutdown zone after vibratory pile driving has begun, the 
PSO must call for a shutdown of vibratory pile driving. LOA Holder must 
stop vibratory pile driving immediately unless shutdown is not 
practicable due to imminent risk of injury or loss of life to an 
individual or if there is a risk of damage to the vessel that would 
create a risk of injury or loss of life for individuals or if the lead 
engineer determines there is refusal or instability. In any of these 
situations, LOA Holder must document the reason(s) for not shutting 
down and report the information to NMFS Office of Protected Resources 
in the next available weekly report (as described in Sec.  217.265(h)).
    (e) UXO/MEC detonations. The following requirements apply to all 
Unexploded Ordnances and Munitions and Explosives of Concern (UXO/MEC) 
detonations:

[[Page 62983]]

    (1) Upon encountering an UXO/MEC, LOA Holder may only resort to 
high-order removal (i.e., detonation) if all other means of removal are 
impracticable;
    (2) LOA Holder may detonate a maximum of 10 UXO/MECs, of varying 
sizes but no larger than 1,000 pounds (lbs; 454 kilograms (kg)) charge 
weight (i.e., E12), over the effective period of this rulemaking and 
LOA;
    (3) LOA Holder must not detonate UXO/MECs from November 1 through 
April 31, annually;
    (4) UXO/MEC detonations must only occur during daylight hours;
    (5) No more than one detonation may occur within a 24-hour period;
    (6) LOA Holder must establish and implement clearance zones for 
UXO/MEC detonation using both visual and acoustic monitoring, as 
described in paragraphs (c)(7), (8), and (12) through (14) of this 
section. UXO/MEC clearance zones are specific to the known charge 
weight size of the UXO/MEC to be detonated; if charge weight is unknown 
or uncertain then the largest zone size must be used;
    (7) LOA Holder must utilize PSO(s) and PAM operator(s), as 
described in Sec.  217.265(c). At least three PSOs on each of two 
dedicated PSO vessels must be used for all detonations with clearance 
zones less than 5 km (3.1 mi). If the clearance zone is larger than 5 
km, at least one dedicated PSO vessel (with at least three on-duty 
PSOs) and an aerial platform (with at least two on-duty PSOs) must be 
used. Clearance zone size is measured using the radial distance from 
the UXO/MEC to be detonated;
    (8) LOA Holder must utilize NMFS-approved PAM systems, as described 
in (c)(17) of this section.
    (9) LOA Holder must deploy at least a double big bubble curtain 
during all UXO/MEC detonations. The bubble curtain must be deployed at 
a distance that avoids damage to the hose nozzles:
    (i) Any bubble curtain(s) must distribute air bubbles using an air 
flow rate of at least 0.5 m\3\/(minute*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column;
    (ii) 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;
    (iii) No parts of the ring or other objects may prevent full 
seafloor contact with a bubble curtain ring;
    (iv) Construction contractors must train personnel in the proper 
balancing of airflow to the bubble curtain ring. LOA Holder must 
provide NMFS Office of Protected Resources with a bubble curtain 
performance test and maintenance report to review within 72 hours after 
each UO/MEC is detonated. Additionally, a full maintenance check (e.g., 
manually clearing holes) must occur prior to each UXO/MEC detonation;
    (v) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (e)(9) must occur prior to UXO/MEC 
detonation.
    (10) LOA Holder must conduct SFV during all UXO/MEC detonations as 
described in paragraph (c)(15) of this section and deploy a pressure 
transducer;
    (11) 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. 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;
    (12) For UXO/MEC detonations, LOA Holder must follow all measures 
described in paragraphs (c)(15) and Sec.  217.264(c)(15)(i) through 
(vi), as well as the measures below:
    (i) LOA Holder must not exceed modeled distances to NMFS marine 
mammal Level A harassment and Level B harassment thresholds, assuming 
10-dB attenuation, for UXO/MEC detonations. If any of the interim SFV 
measurement reports submitted for any UXO/MEC detonations indicate the 
modeled distances to NMFS marine mammal Level A harassment and Level B 
harassment thresholds assuming 10-dB attenuation for future detonations 
will be exceeded, then LOA Holder must implement additional sound 
attenuation measures on all subsequent UXO/MEC detonations, including 
but not limited to the deployment of additional NAS to assist in 
achieving measurements in alignment with the modeled ranges. LOA Holder 
must also increase clearance zone sizes to those identified by NMFS 
until SFV measurements on UXO/MECs demonstrate distances to harassment 
thresholds will be met or will be less than those modeled assuming 10 
dB of attenuation. LOA Holder must optimize the sound attenuation 
systems (e.g., ensure hose maintenance, pressure testing, etc.) to meet 
noise levels modeled, assuming 10 dB of attenuation, for UXO/MECs of 
the same charge weight or else no detonation activities must occur 
until NMFS and LOA Holder can evaluate the situation and ensure future 
UXO/MEC detonations must not exceed noise levels modeled, assuming 10-
dB attenuation;
    (ii) LOA Holder must submit a SFV Plan for UXO/MEC detonation to 
NMFS Office of Protected Resources for review and approval at least 180 
days prior to planned start of UXO/MEC detonation activities and abide 
by the Plan if approved. The SFV Plan must include methodology for 
collecting, analyzing, and preparing SFV measurement data for 
submission to NMFS Office of Protected Resources and describe how the 
effectiveness of the sound attenuation methodology would be evaluated 
based on the results. For recommended SFV protocols for UXO/MEC, please 
consult the National Physical Laboratory (NPL) Protocol for In-Situ 
Underwater Measurement of Explosive Ordnance Disposal for UXO (2020). 
SFV for UXO/MEC detonation cannot occur until NMFS approves the SFV 
Plan for this activity;
    (iii) LOA Holder must submit a UXO/MEC Marine Mammal Monitoring 
Plan to NMFS Office of Protected Resources for review and approval at 
least 180 days prior to planned start of UXO/MEC detonation, 
respectively, and abide by the Plan if approved. LOA Holder must obtain 
both NMFS Office of Protected Resources and NMFS Greater Atlantic 
Regional Fisheries Office Protected Resources Division's concurrence 
with this Plan prior to the start of any UXO/MEC detonations. The Plan 
must include a description of all monitoring equipment and PAM and PSO 
protocols (including number and location of PSOs) for all UXO/MEC 
detonations. The Plan must include final UXO/MEC detonation project 
design (e.g., number and type of UXO/MECs, removal method(s), charge 
weight(s), anticipated start date, etc.) and all information related to 
PAM and PSO monitoring protocols for UXO/MEC activities. The Plan must 
detail all plans and procedures for sound attenuation as well as for 
monitoring marine mammals during all UXO/MEC detonations. No UXO/MEC 
detonations can occur without NMFS' approval of the Plan; and

[[Page 62984]]

    (iv) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM 
Plan) to NMFS Office of Protected Resources for review and approval at 
least 180 days prior to the planned start of UXO/MEC detonations and 
abide by the Plan if approved. The PAM Plan must include a description 
of all proposed PAM equipment, address how the proposed passive 
acoustic monitoring must follow standardized measurement, processing 
methods, reporting metrics, and metadata standards for offshore wind. 
The Plan must describe all proposed PAM equipment, procedures, and 
protocols including proof that vocalizing North Atlantic right whales 
will be detected within the clearance and shutdown zones. No UXO/MEC 
detonations can occur if LOA Holder's PAM Plan does not receive 
approval from NMFS Office of Protected Resources and NMFS Greater 
Atlantic Regional Fisheries Office Protected Resources Division.
    (f) HRG surveys. The following requirements apply to HRG surveys 
operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers, and 
Compressed High Intensity Radiated Pulse (CHIRPS)):
    (1) LOA Holder must establish and implement clearance and shutdown 
zones for HRG surveys using visual monitoring, as described in 
paragraph (c) of this section;
    (2) LOA Holder must utilize PSO(s), as described in Sec.  
217.265(f);
    (3) LOA Holder must abide by the relevant Project Design Criteria 
(PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' 
Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised 
September 2021), pursuant to section 7 of the Endangered Species Act 
(ESA). To the extent that any relevant Best Management Practices (BMPs) 
described in these PDCs are more stringent than the requirements 
herein, those BMPs supersede these requirements;
    (4) SBPs (hereinafter referred to as ``acoustic sources'') must be 
deactivated when not acquiring data or preparing to acquire data, 
except as necessary for testing. Acoustic sources must be used at the 
lowest practicable source level to meet the survey objective, when in 
use, and must be turned off when they are not necessary for the survey;
    (5) LOA Holder is required to ramp-up acoustic sources prior to 
commencing full power, unless the equipment operates on a binary on/off 
switch, and ensure 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 acoustic sources specified 
in the LOA. Ramp-up and activation must be delayed if a marine 
mammal(s) enters its respective shutdown zone. Ramp-up and activation 
may only be reinitiated if the animal(s) has been observed exiting its 
respective shutdown zone or until 15 minutes for small odontocetes and 
pinnipeds, and 30 minutes for all other species, has elapsed with no 
further sightings;
    (6) Prior to a ramp-up procedure starting or activating acoustic 
sources, the acoustic source operator (operator) must notify a 
designated PSO of the planned start of ramp-up as agreed upon with the 
Lead PSO. The notification time should not be less than 60 minutes 
prior to the planned ramp-up or activation in order to allow the PSOs 
time to monitor the clearance zone(s) for 30 minutes prior to the 
initiation of ramp-up or activation (pre-start clearance). During this 
30-minute pre-start clearance period, the entire applicable clearance 
zones must be visible, except as indicated in paragraph (f)(12) of this 
section;
    (7) Ramp-ups must be scheduled so as to minimize the time spent 
with the source activated;
    (8) A PSO conducting pre-start clearance observations must be 
notified again immediately prior to reinitiating ramp-up procedures and 
the operator must receive confirmation from the PSO to proceed;
    (9) LOA Holder must implement a 30-minute clearance period of the 
clearance zones immediately prior to the commencing of the survey or 
when there is more than a 30-minute break in survey activities or PSO 
monitoring. A clearance period is a period when no marine mammals are 
detected in the relevant zone;
    (10) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up or acoustic surveys may not begin until 
the animal(s) has been observed voluntarily exiting its respective 
clearance zone or until a specific time period has elapsed with no 
further sighting. The specific time period is 15 minutes for small 
odontocetes and pinnipeds, and 30 minutes for all other species;
    (11) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(infrared (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. Ramp-up may occur 
at times of poor visibility, including nighttime, if appropriate visual 
monitoring has occurred with no detections of marine mammals in the 30 
minutes prior to beginning ramp-up;
    (12) Once the survey has commenced, LOA Holder must shut down 
acoustic sources if a marine mammal enters a respective shutdown zone, 
except in cases when the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations would be allowed to 
continue (i.e., no shutdown is required) so long as no marine mammals 
have been detected. The shutdown requirement does not apply to small 
delphinids of the following genera: Delphinus, Stenella, 
Lagenorhynchus, and Tursiops. If there is uncertainty regarding the 
identification of a marine mammal species (i.e., whether the observed 
marine mammal belongs to one of the delphinid genera for which shutdown 
is waived), the PSOs must use their best professional judgment in 
making the decision to call for a shutdown. Shutdown is required if a 
delphinid that belongs to a genus other than those specified in this 
paragraph (f)(12) of this section is detected in the shutdown zone;
    (13) If an acoustic source has been shut down due to the presence 
of a marine mammal, the use of an acoustic source may not 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;
    (14) LOA Holder must immediately shut down any acoustic source if a 
marine mammal is sighted entering or within its respective shutdown 
zones. 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 in paragraph (f)(12) of this section is 
detected in the shutdown zone; and
    (15) If an acoustic source is shut down for a period longer than 30 
minutes, all clearance and ramp-up procedures must be initiated. If an 
acoustic source is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, acoustic sources may 
be activated again without ramp-up only if PSOs have maintained 
constant

[[Page 62985]]

observation and no additional detections of any marine mammal occurred 
within the respective shutdown zones.
    (g) Fisheries monitoring surveys. The following measures apply to 
fishery monitoring surveys:
    (1) Survey gear must be deployed as soon as possible once the 
vessel arrives on station. Gear must not be deployed if there is a risk 
of interaction with marine mammals. Gear may be deployed after 15 
minutes of no marine mammal sightings within 1 nautical mile (nmi; 
1,852 m) of the sampling station;
    (2) LOA Holder and/or its cooperating institutions, contracted 
vessels, or commercially hired captains must implement the following 
``move-on'' rule: If marine mammals are sighted within 1 nmi of the 
planned location and 15 minutes before gear deployment, then LOA Holder 
and/or its cooperating institutions, contracted vessels, or 
commercially hired captains, as appropriate, must move the vessel away 
from the marine mammal to a different section of the sampling area. If, 
after moving on, marine mammals are still visible from the vessel, LOA 
Holder and its cooperating institutions, contracted vessels, or 
commercially hired captains must move again or skip the station;
    (3) If a marine mammal is deemed to be at risk of interaction after 
the gear is deployed or set, all gear must be immediately removed from 
the water. If marine mammals are sighted before the gear is fully 
removed from the water, the vessel must slow its speed and maneuver the 
vessel away from the animals to minimize potential interactions with 
the observed animal;
    (4) LOA Holder must maintain visual marine mammal monitoring effort 
during the entire period of time that gear is in the water (i.e., 
throughout gear deployment, fishing, and retrieval);
    (5) All fisheries monitoring gear must be fully cleaned and 
repaired (if damaged) before each use/deployment;
    (6) LOA Holder's fixed gear must comply with the Atlantic Large 
Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries 
monitoring surveys;
    (7) Trawl tows must be limited to a maximum of a 20-minute trawl 
time at 3.0 kn;
    (8) All gear must be emptied as close to the deck/sorting area and 
as quickly as possible after retrieval;
    (9) During trawl surveys, vessel crew must open the codend of the 
trawl net close to the deck in order to avoid injury to animals that 
may be caught in the gear;
    (10) Baited remote underwater video (BRUV) sampling must limit soak 
duration to 60 minutes or less, BRUVs must use a weighted line attached 
to surface and subsurface buoys that must hold a stereo-camera system 
in the water column and a system at the seafloor, and the vessel must 
remain on location with the gear while it is in use;
    (11) Each chevron trap must have a vertical buoy line and must 
limit soak duration to 90 minutes or less;
    (12) All fishery survey-related lines must include the breaking 
strength of all lines being less than 1,700 pounds (lbs; 771 kilograms 
(kg)). This may be accomplished by using whole buoy line that has a 
breaking strength of 1,700 lbs; or buoy line with weak inserts that 
result in line having an overall breaking strength of 1,700 lbs;
    (13) During any survey that uses vertical lines, buoy lines must be 
weighted and must not float at the surface of the water and all 
groundlines must consist of sinking lines. All groundlines must be 
composed entirely of sinking lines. Buoy lines must utilize weak links. 
Weak links must break cleanly leaving behind the bitter end of the 
line. The bitter end of the line must be free of any knots when the 
weak link breaks. Splices are not considered to be knots. The 
attachment of buoys, toggles, or other floatation devices to 
groundlines is prohibited;
    (14) All in-water survey gear, including buoys, must be properly 
labeled with the scientific permit number or identification as LOA 
Holder's research gear. All labels and markings on the gear, buoys, and 
buoy lines must also be compliant with the applicable regulations, and 
all buoy markings must comply with instructions received by the NOAA 
Greater Atlantic Regional Fisheries Office Protected Resources 
Division;
    (15) All survey gear must be removed from the water whenever not in 
active survey use (i.e., no wet storage); and
    (16) All reasonable efforts, that do not compromise human safety, 
must be undertaken to recover gear.


Sec.  217.265  Monitoring and reporting requirements.

    (a) Protected species observer (PSO) and passive acoustic 
monitoring (PAM) operator qualifications. LOA Holder must implement the 
following measures applicable to PSOs and PAM operators:
    (1) LOA Holder must use independent, NMFS-approved PSOs and PAM 
operators, meaning that the PSOs and PAM operators 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 crew with regard to the presence of protected species 
and mitigation requirements;
    (2) All PSOs and PAM operators must have successfully attained a 
bachelor's degree from an accredited college or university with a major 
in one of the natural sciences, a minimum of 30 semester hours or 
equivalent in the biological sciences, and at least one undergraduate 
course in math or statistics. The educational requirements may be 
waived if the PSO or PAM operator has acquired the relevant skills 
through a suitable amount of alternate experience. Requests for such a 
waiver must be submitted to NMFS Office of Protected Resources and must 
include written justification containing alternative experience. 
Alternate experience that may be considered includes, but is not 
limited to: previous work experience conducting academic, commercial, 
or government-sponsored marine mammal visual and/or acoustic surveys; 
or previous work experience as a PSO/PAM operator;
    (3) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving targets 
on the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable); ability to conduct field 
observations and collect data according to the assigned protocols; 
sufficient training, orientation, or experience with the construction 
operation to provide for personal safety during observations; writing 
skills sufficient to document observations, including but not limited 
to, the number and species of marine mammals observed, the dates and 
times of when in-water construction activities were conducted, the 
dates and time when in-water construction activities were suspended to 
avoid potential incidental take of marine mammals from construction 
noise within a defined shutdown zone, and marine mammal behavior; and 
the ability to communicate orally, by radio, or in-person, with project 
personnel to provide real-time information on marine mammals observed 
in the area;
    (4) All PSOs must be trained in northwestern Atlantic Ocean 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 (as 
described in paragraphs (b)(6) and (b)(7) of this section);
    (5) All PSOs and PAM operators must successfully complete a 
relevant

[[Page 62986]]

training course within the last 5 years, including obtaining a 
certificate of course completion;
    (6) PSOs and PAM operators are responsible for obtaining NMFS' 
approval. NMFS may approve PSOs and PAM operators as conditional or 
unconditional. A conditionally-approved PSO or PAM operator may be one 
who has completed training in the last 5 years but has not yet attained 
the requisite field experience. An unconditionally approved PSO or PAM 
operator is one who has completed training within the last 5 years and 
attained the necessary experience (i.e., demonstrate experience with 
monitoring for marine mammals at clearance and shutdown zone sizes 
similar to those produced during the respective activity). Lead PSO or 
PAM operators must be unconditionally approved and have a minimum of 90 
days in an northwestern Atlantic Ocean offshore environment performing 
the role (either visual or acoustic), with the conclusion of the most 
recent relevant experience not more than 18 months previous. A 
conditionally approved PSO or PAM operator must be paired with an 
unconditionally approved PSO or PAM operator;
    (7) PSOs for cable landfall construction (i.e., vibratory pile 
installation and removal) and HRG surveys may be unconditionally or 
conditionally approved. PSOs and PAM operators for foundation 
installation and UXO/MEC activities must be unconditionally approved;
    (8) At least one on-duty PSO and PAM operator, where applicable, 
for each activity (e.g., impact pile driving, vibratory pile driving, 
UXO/MEC detonation activities, and HRG surveys) must be designated as 
the Lead PSO or Lead PAM operator;
    (9) LOA Holder must submit NMFS previously approved PSOs and PAM 
operators to NMFS Office of Protected Resources for review and 
confirmation of their approval for specific roles at least 30 days 
prior to commencement of the activities requiring PSOs/PAM operators or 
15 days prior to when new PSOs/PAM operators are required after 
activities have commenced;
    (10) For prospective PSOs and PAM operators not previously 
approved, or for PSOs and PAM operators whose approval is not current, 
LOA Holder must submit resumes for approval at least 60 days prior to 
PSO and PAM operator use. Resumes must include information related to 
relevant education, experience, and training, including dates, 
duration, location, and description of prior PSO or PAM operator 
experience. Resumes must be accompanied by relevant documentation of 
successful completion of necessary training;
    (11) PAM operators are responsible for obtaining NMFS approval. To 
be approved as a PAM operator, the person must meet the following 
qualifications: The PAM operator must demonstrate that they have prior 
experience with real-time acoustic detection systems and/or have 
completed specialized training for operating PAM systems and detecting 
and identifying Atlantic Ocean marine mammals sounds, in particular: 
North Atlantic right whale sounds, humpback whale sounds, and how to 
deconflict them from similar North Atlantic right whale sounds, and 
other co-occurring species' sounds in the area including sperm whales; 
must be able to distinguish between whether a marine mammal or other 
species sound is detected, possibly detected, not detected and similar 
terminology must be used across companies/projects; where localization 
of sounds or deriving bearings and distance are possible, the PAM 
operators need to have demonstrated experience in using this technique; 
PAM operators must be independent observers (i.e., not construction 
personnel); PAM operators must demonstrate experience with relevant 
acoustic software and equipment; PAM operators must have the 
qualifications and relevant experience/training to safely deploy and 
retrieve equipment and program the software, as necessary; PAM 
operators must be able to test software and hardware functionality 
prior to operation; and PAM operators must have evaluated their 
acoustic detection software using the PAM Atlantic baleen whale 
annotated data set available at National Centers for Environmental 
Information (NCEI) and provide evaluation/performance metric;
    (12) PAM operators must be able to review and classify acoustic 
detections in real-time (prioritizing North Atlantic right whales and 
noting detection of other cetaceans) during the real-time monitoring 
periods;
    (13) PSOs may work as PAM operators and vice versa, pending NMFS-
approval; however, they may only perform one role at any one time and 
must not exceed work time restrictions, which must be tallied 
cumulatively; and
    (14) All PSOs and PAM operators must complete a Permits and 
Environmental Compliance Plan training and a 2-day refresher session 
that must be held with the PSO provider and Project compliance 
representative(s) prior to the start of in-water project activities 
(e.g., HRG survey, foundation installation, cable landfall activities, 
UXO/MEC detonations, etc.).
    (b) General PSO and PAM operator requirements. The following 
measures apply to PSOs and PAM operators and must be implemented by LOA 
Holder:
    (1) PSOs must monitor for marine mammals prior to, during, and 
following impact pile driving, vibratory pile driving, UXO/MEC 
detonation activities, and HRG surveys that use sub-bottom profilers 
(with specific monitoring durations and needs described in paragraphs 
(c) through (f) of this section, respectively). Monitoring must be done 
while free from distractions and in a consistent, systematic, and 
diligent manner;
    (2) For foundation installation and UXO/MEC detonation, PSOs must 
visually clear (i.e., confirm no observations of marine mammals) the 
entire minimum visibility zone for a full 30 minutes immediately prior 
to commencing activities. For cable landfall activities (e.g., 
cofferdams and goal posts) and HRG surveys, which do not have a minimum 
visibility zone, the entire clearance zone must be visually cleared and 
as much of the Level B harassment zone as possible;
    (3) All PSOs must be located at the best vantage point(s) on any 
platform, as determined by the Lead PSO, in order to obtain 360-degree 
visual coverage of the entire clearance and shutdown zones around the 
activity area, and as much of the Level B harassment zone as possible. 
PAM operators may be located on a vessel or remotely on-shore, the PAM 
operator(s) must assist PSOs in ensuring full coverage of the clearance 
and shutdown zones. The PAM operator must monitor to and past the 
clearance zone for large whales;
    (4) All on-duty PSOs must remain in real-time contact with the on-
duty PAM operator(s), PAM operators must immediately communicate all 
acoustic detections of marine mammals to PSOs, including any 
determination regarding species identification, distance, and bearing 
(where relevant) relative to the pile being driven and the degree of 
confidence (e.g., possible, probable detection) in the determination. 
All on-duty PSOs and PAM operator(s) must remain in contact with the 
on-duty construction personnel responsible for implementing mitigations 
(e.g., delay to pile driving or UXO/MEC detonation) to ensure 
communication on marine mammal observations can easily, quickly, and 
consistently occur between all on-duty PSOs, PAM operator(s), and on-
water Project personnel;
    (5) The PAM operator must inform the Lead PSO(s) on duty of animal 
detections approaching or within

[[Page 62987]]

applicable ranges of interest to the activity occurring via the data 
collection software system (i.e., Mysticetus or similar system) who 
must be responsible for requesting that the designated crewmember 
implement the necessary mitigation procedures (i.e., delay);
    (6) PSOs must use high magnification (25x) binoculars, standard 
handheld (7x) binoculars, and the naked eye to search continuously for 
marine mammals. During foundation installation and UXO/MEC detonations, 
at least two PSOs on the pile driving and detonation-dedicated PSO 
vessel must be equipped with functional Big Eye binoculars (e.g., 25 x 
150; 2.7 view angle; individual ocular focus; height control); these 
must be pedestal mounted on the deck at the best vantage point that 
provides for optimal sea surface observation and PSO safety. PAM 
operators must have the appropriate equipment (i.e., a computer station 
equipped with a data collection software system available wherever they 
are stationed) and use a NMFS-approved PAM system to conduct 
monitoring. PAM systems are approved through the PAM Plan as described 
in Sec.  217.264(c)(17);
    (7) During periods of low visibility (e.g., darkness, rain, fog, 
poor weather conditions, etc.), PSOs must use alternative technology 
(i.e., infrared or thermal cameras) to monitor the clearance and 
shutdown zones as approved by NMFS; and
    (8) PSOs and PAM operators must not exceed 4 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. If the schedule includes PSOs and PAM 
operators on-duty for 2-hour shifts, a minimum 1-hour break between 
watches must be allowed.
    (c) PSO and PAM operator requirements during WTG and OSS foundation 
installation and UXO/MEC detonations. The following measures apply to 
PSOs and PAM operators during WTG and OSS foundation installation and 
UXO/MEC detonations and must be implemented by LOA Holder:
    (1) PSOs and PAM operator(s), using a NMFS-approved PAM system, 
must monitor for marine mammals 60 minutes prior to, during, and 30 
minutes following all pile-driving and UXO/MEC detonation activities. 
If PSOs cannot visually monitor the minimum visibility zone prior to 
impact pile driving or the clearance zone prior to any UXO/MEC 
detonation at all times using the equipment described in paragraphs 
(b)(6) and (7) of this section, pile-driving operations or UXO/MEC 
detonation must not commence or must shutdown if they are currently 
active;
    (2) At least three on-duty PSOs must be stationed and observing 
from the activity platform during impact pile driving or UXO/MEC 
detonation and at least three on-duty PSOs must be stationed on each 
dedicated PSO vessel. If an aerial platform is required or used (per 
Sec.  217.264(e)(7)), at least two on-duty PSOs must be actively 
searching for marine mammals. Concurrently, at least one PAM operator 
per acoustic data stream (equivalent to the number of acoustic buoys) 
must be actively monitoring for marine mammals 60 minutes before, 
during, and 30 minutes after impact pile driving or UXO/MEC detonation 
in accordance with a NMFS-approved PAM Plan;
    (3) LOA Holder must conduct PAM for at least 24 hours immediately 
prior to pile driving or UXO/MEC detonation activities. The PAM 
operator must review all detections from the previous 24-hour period 
immediately prior to pile driving and UXO/MEC detonation activities.
    (d) PSO requirements during cofferdam and goal post installation 
and removal. The following measures apply to PSOs during cofferdam and 
goal post installation and removal and must be implemented by LOA 
Holder:
    (1) At least two PSOs must be on active duty during all activities 
related to the installation and removal of cofferdams and goal posts; 
and
    (2) 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 must only commence when visual clearance zones are 
fully visible (e.g., not obscured by darkness, rain, fog, etc.) and 
clear of marine mammals, as determined by the Lead PSO, for at least 30 
minutes immediately prior to initiation of vibratory pile driving.
    (e) PSO requirements during HRG surveys. The following measures 
apply to PSOs during HRG surveys using acoustic sources that have the 
potential to result in harassment and must be implemented by LOA 
Holder:
    (1) Between four and six PSOs must be present on every 24-hour 
survey vessel and two to three PSOs must be present on every 12-hour 
survey vessel;
    (2) At least one PSO must be on active duty monitoring during HRG 
surveys conducted during daylight (i.e., from 30 minutes prior to civil 
sunrise through 30 minutes following civil sunset) and at least two 
PSOs must be on activity duty monitoring during HRG surveys conducted 
at night;
    (3) PSOs on HRG vessels must begin monitoring 30 minutes prior to 
activating acoustic sources, during the use of these acoustic sources, 
and for 30 minutes after use of these acoustic sources has ceased;
    (4) Any observations of marine mammals must be communicated to PSOs 
on all nearby survey vessels during concurrent HRG surveys; and
    (5) During daylight hours when survey equipment is not operating, 
LOA Holder must ensure that visual PSOs conduct, as rotation schedules 
allow, observations for comparison of sighting rates and behavior with 
and without use of the specified acoustic sources. Off-effort PSO 
monitoring must be reflected in the monthly PSO monitoring reports.
    (f) Monitoring requirements during fisheries monitoring surveys. 
The following measures apply during fisheries monitoring surveys and 
must be implemented by LOA Holder:
    (1) All captains and crew conducting fishery surveys must be 
trained in marine mammal detection and identification; and
    (2) Marine mammal monitoring must be conducted within 1 nmi from 
the planned survey location by the trained captain and/or a member of 
the scientific crew for 15 minutes prior to deploying gear, throughout 
gear deployment and use, and for 15 minutes after haul back.
    (g) Reporting. LOA Holder must comply with the following reporting 
measures:
    (1) Prior to initiation of any on-water project activities, LOA 
Holder must demonstrate in a report submitted to NMFS Office of 
Protected Resources that all required training for LOA Holder personnel 
(including the vessel crews, vessel captains, PSOs, and PAM operators) 
has been completed.
    (2) LOA Holder must use a standardized reporting system during the 
effective period of the LOA. All data collected related to the Project 
must be recorded using industry-standard software that is installed on 
field laptops and/or tablets. Unless stated otherwise, all reports must 
be submitted to NMFS Office of Protected Resources 
([email protected]), dates must be in MM/DD/YYYY 
format, and location information must be provided in Decimal Degrees 
and with the coordinate system information (e.g., NAD83, WGS84, etc.).
    (3) For all visual monitoring efforts and marine mammal sightings, 
the following information must be collected

[[Page 62988]]

and reported to NMFS Office of Protected Resources: the date and time 
that monitored activity begins or ends; the construction activities 
occurring during each observation period; the watch status (i.e., 
sighting made by PSO on/off effort, opportunistic, crew, alternate 
vessel/platform); the PSO who sighted the animal; the time of sighting; 
the weather parameters (e.g., wind speed, percent cloud cover, 
visibility); the water conditions (e.g., Beaufort sea state, tide 
state, water depth); all marine mammal sightings, regardless of 
distance from the construction activity; species (or lowest possible 
taxonomic level possible); the pace of the animal(s); the estimated 
number of animals (minimum/maximum/high/low/best); the estimated number 
of animals by cohort (e.g., adults, yearlings, juveniles, calves, group 
composition, etc.); the 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); the 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; the animal's closest distance and bearing from the 
pile being driven or specified HRG equipment and estimated time entered 
or spent within the Level A harassment and/or Level B harassment 
zone(s); the activity at time of sighting (e.g., vibratory 
installation/removal, impact pile driving, construction survey), use of 
any noise attenuation device(s), and specific phase of activity (e.g., 
ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for 
pile driving, active pile driving, etc.); the marine mammal occurrence 
in Level A harassment or Level B harassment zones; the 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, and; other applicable information, as 
required in any LOA issued under Sec.  217.266.
    (4) LOA Holder must compile and submit weekly reports during 
foundation installation to NMFS Office of Protected Resources that 
document the daily start and stop of all pile driving associated with 
the Project; the start and stop of associated observation periods by 
PSOs; details on the deployment of PSOs; a record of all detections of 
marine mammals (acoustic and visual); any mitigation actions (or if 
mitigation actions could not be taken, provide reasons why); and 
details on the noise attenuation system(s) used and its performance. 
Weekly reports are due on Wednesday for the previous week (Sunday to 
Saturday) and must include the information required under this section. 
The weekly report must also identify which turbines become operational 
and when (a map must be provided). Once all foundation pile 
installation is completed, weekly reports are no longer required by LOA 
Holder.
    (5) LOA Holder must compile and submit monthly reports to NMFS 
Office of Protected Resources during foundation installation 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, MMIS number, and route), number of piles 
installed, all detections of marine mammals, and any mitigative action 
taken. Monthly reports are due on the 15th of the month for the 
previous month. The monthly report must also identify which turbines 
become operational and when (a map must be provided). Full PAM 
detection data and metadata must also 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 at 
https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates.
    (6) LOA Holder must submit a draft annual report to NMFS Office of 
Protected Resources no later than 90 days following the end of a given 
calendar year. LOA Holder must provide a final report within 30 days 
following resolution of NMFS' comments on the draft report. The draft 
and final reports must detail the following: 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 zone(s) 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 actions was taken, why not; operational details 
(i.e., days and duration of impact and vibratory pile driving, days and 
number of UXO/MEC detonations, days and amount of HRG survey effort, 
etc.); any PAM systems used; the results, effectiveness, and which 
noise attenuation systems were used during relevant activities (i.e., 
impact pile driving, and UXO/MEC detonations); summarized information 
related to situational reporting; and any other important information 
relevant to the Project, including additional information that may be 
identified through the adaptive management process.
    (7) LOA Holder must submit its draft 5-year report to NMFS Office 
of Protected Resources on all visual and acoustic monitoring conducted 
within 90 calendar days of the completion of activities occurring under 
the LOA. A 5-year report must be prepared and submitted within 60 
calendar days following receipt of any NMFS Office of Protected 
Resources comments on the draft report. If no comments are received 
from NMFS Office of Protected Resources within 60 calendar days of NMFS 
Office of Protected Resources receipt of the draft report, the report 
shall be considered final.
    (8) For those foundation piles and UXO/MEC detonations requiring 
SFV measurements, LOA Holder must provide the initial results of the 
SFV measurements to NMFS Office of Protected Resources in an interim 
report after each foundation installation event and each UXO/MEC 
detonation event as soon as they are available and prior to a 
subsequent detonation or foundation installation, but no later than 48 
hours after each completed foundation installation event and 48 hours 
after a detonation. The report must include, at minimum: hammer 
energies/schedule used during pile driving, including, the total number 
of strikes and the maximum hammer energy; the model-estimated acoustic 
ranges (R95%) to compare with the real-world 
sound field measurements; the estimated UXO/MEC charge size (or 
physical size if charge size is unknown) and donor charge size in 
trinitrotoluene (TNT) equivalent weight for either high (donor charge 
used to detonate/destroy UXO/MEC) or low order (e.g., deflagration 
where donor charge disrupts/consumes UXO/MEC) detonations and 
description of UXO/MEC (e.g., munition type, state of submergence, 
approximate age); peak sound pressure level (SPLpk), root-
mean-square sound pressure level that contains 90 percent of the 
acoustic energy (SPLrms), and sound exposure level (SEL, in 
single strike for pile driving, SELss,), for each 
hydrophone, including at least the maximum, arithmetic mean, minimum, 
median (L50) and L5 (95 percent exceedance) statistics for each metric; 
estimated

[[Page 62989]]

marine mammal Level A harassment and Level B harassment acoustic 
isopleths, calculated using the maximum-over-depth L5 (95 percent 
exceedance level, maximum of both hydrophones) of the associated sound 
metric; comparison of modeled results assuming 10-dB attenuation 
against the measured marine mammal Level A harassment and Level B 
harassment acoustic isopleths; estimated transmission loss 
coefficients; pile identifier name, location of the pile and UXO/MEC 
and each hydrophone array in latitude/longitude; depths of each 
hydrophone; one-third-octave band single strike SEL spectra; if 
filtering is applied, full filter characteristics must be reported; and 
hydrophone specifications including the type, model, and sensitivity. 
LOA Holder must also report any immediate observations which are 
suspected to have a significant impact on the results including but not 
limited to: observed noise mitigation system issues, obstructions along 
the measurement transect, and technical issues with hydrophones or 
recording devices. If any in-situ calibration checks for hydrophones 
reveal a calibration drift greater than 0.75 dB, pistonphone 
calibration checks are inconclusive, or calibration checks are 
otherwise not effectively performed, LOA Holder must indicate full 
details of the calibration procedure, results, and any associated 
issues in the 48-hour interim reports.
    (9) The final results of SFV measurements from each foundation 
installation and each UXO/MEC detonation must be submitted as soon as 
possible, but no later than 90 days following completion of each 
event's SFV measurements. The final reports must include all details 
prescribed above for the interim report as well as, at minimum, the 
following: the peak sound pressure level (SPLpk), the root-
mean-square sound pressure level that contains 90 percent of the 
acoustic energy (SPLrms), the single strike sound exposure 
level (SELss), the integration time for SPLrms, 
the spectrum, and the 24-hour cumulative SEL extrapolated from 
measurements at all hydrophones. The final report must also include at 
least the maximum, mean, minimum, median (L50) and 
L5 (95 percent exceedance) statistics for each metric; the 
SEL and SPL power spectral density and/or one-third octave band levels 
(usually calculated as decidecade band levels) at the receiver 
locations should be reported; the sound levels reported must be in 
median, arithmetic mean, and L5 (95 percent exceedance) 
(i.e., average in linear space), and in dB; range of TL coefficients; 
the 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 (broadband and/or within 
frequencies of concern); a description of depth and sediment type, as 
documented in the Construction and Operation Plan (COP), at the 
recording and foundation installation and UXO/MEC detonation locations; 
the extents of the measured Level A harassment and Level B harassment 
zone(s); hammer energies required for pile installation and the number 
of strikes per pile; the charge weights and other relevant 
characteristics of UXO/MEC detonations; the hydrophone equipment and 
methods (i.e., recording device, bandwidth/sampling rate; distance from 
the pile and UXO/MEC where recordings were made; the depth of recording 
device(s)); a description of the SFV measurement 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; the spatial configuration of the noise attenuation 
device(s) relative to the pile and UXO/MEC charge; a description of the 
noise abatement system and operational parameters (e.g., bubble flow 
rate, distance deployed from the pile and/or UXO/MEC, etc.), and any 
action taken to adjust the noise abatement system. A discussion which 
includes any observations which are suspected to have a significant 
impact on the results including but not limited to: observed noise 
mitigation system issues, obstructions along the measurement transect, 
and technical issues with hydrophones or recording devices.
    (10) If at any time during the project LOA Holder becomes aware of 
any issue or issues which may (to any reasonable subject-matter expert, 
including the persons performing the measurements and analysis) call 
into question the validity of any measured Level A harassment or Level 
B harassment isopleths to a significant degree, which were previously 
transmitted or communicated to NMFS Office of Protected Resources, LOA 
Holder must inform NMFS Office of Protected Resources within 1 business 
day of becoming aware of this issue or before the next pile is driven 
(or UXO/MEC is detonated), whichever comes first.
    (11) If a North Atlantic right whale is acoustic detected at any 
time by a project-related PAM system, LOA Holder must ensure the 
detection is reported as soon as possible to NMFS, but no longer than 
24 hours after the detection via the 24-hour North Atlantic right whale 
Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is 
not necessary when reporting PAM detections via the template;
    (12) Full detection data, metadata, and location of recorders (or 
GPS tracks, if applicable) from all real-time hydrophones used for 
monitoring during construction must be submitted within 90 calendar 
days following completion of activities requiring PAM for mitigation 
via the ISO standard metadata forms available on the NMFS Passive 
Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit 
the completed data templates to [email protected]. The full 
acoustic recordings from real-time systems must also be sent to the 
National Centers for Environmental Information (NCEI) for archiving 
within 90 days following completion of activities requiring PAM for 
mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
    (13) LOA Holder must submit situational reports if the following 
circumstances occur (including all instances wherein an exemption is 
taken must be reported to NMFS Office of Protected Resources within 24 
hours):
    (i) If a North Atlantic right whale is observed at any time by PSOs 
or project personnel, LOA Holder must ensure the sighting is 
immediately (if not feasible, as soon as possible and no longer than 24 
hours after the sighting) reported to NMFS and the Right Whale 
Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to 
Virginia/North Carolina border) call (866-755-6622). If in the 
Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or 
877-942-5343). If calling NMFS is not possible, reports can also be 
made to the U.S. Coast Guard via channel 16 or through the WhaleAlert 
app (https://www.whalealert.org/). The sighting report must include the 
time, date, and location of the sighting, number of whales, animal 
description/certainty of sighting (provide photos/video if taken), 
Lease Area/project name, PSO/personnel name, PSO provider company (if 
applicable), and reporter's contact information.
    (ii) If a North Atlantic right whale is observed at any time by 
PSOs or project personnel, LOA Holder must submit a summary report to 
NMFS Greater

[[Page 62990]]

Atlantic Regional Fisheries (GARFO; [email protected]), 
NMFS Office of Protected Resources, and NMFS Northeast Fisheries 
Science Center (NEFSC; [email protected]) within 24 hours with the 
above information and the vessel/platform from which the sighting was 
made, activity the vessel/platform was engaged in at time of sighting, 
project construction and/or survey activity at the time of the sighting 
(e.g., pile driving, cable installation, HRG survey), distance from 
vessel/platform to sighting at time of detection, and any mitigation 
actions taken in response to the sighting.
    (iii) If an observation of a large whale occurs during vessel 
transit, LOA Holder must report the time, date, and location of the 
sighting; the vessel's activity, heading, and speed (knots); Beaufort 
sea state, water depth (meters), and visibility conditions; marine 
mammal species identification to the best of the observer's ability and 
any distinguishing characteristics; initial distance and bearing to 
marine mammal from vessel and closest point of approach; and any 
avoidance measures taken in response to the marine mammal sighting.
    (iv) LOA Holder must provide NMFS Office of Protected Resources 
with notification of planned UXO/MEC detonation as soon as possible but 
at least 48 hours prior to the planned detonation, unless this 48-hour 
notification would create delays to the detonation that would result in 
imminent risk of human life or safety. This notification must include 
the coordinates of the planned detonation, the estimated charge size, 
and any other information available on the characteristics of the UXO/
MEC. If an UXO/MEC detonation occurs, within 72 hours after a 
detonation but before the next detonation, whichever is sooner, LOA 
Holder must report to NMFS Office of Protected Resources the time, 
date, location (latitude/longitude Decimal Degrees), charge weight 
size, justification on why detonation was necessary and other means of 
removal or avoidance could not occur, all detections of marine mammals 
within the UXO/MEC zones, and any mitigative action taken.
    (v) In the event that personnel involved in the Project discover a 
stranded, entangled, injured, or dead marine mammal, LOA Holder must 
immediately report the observation to NMFS. If in the Greater Atlantic 
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding 
Hotline (866-755-6622); if in the Southeast Region (North Carolina to 
Florida), call the NMFS Southeast Stranding Hotline (877-942-5343). 
Separately, LOA Holder must report the incident to NMFS Office of 
Protected Resources ([email protected]) and, if in the 
Greater Atlantic region (Maine to Virginia), NMFS Greater Atlantic 
Regional Fisheries Office (GARFO; [email protected], 
[email protected]) or, if in the Southeast region (North 
Carolina to Florida), NMFS Southeast Regional Office (SERO; 
[email protected]) as soon as feasible. The report (via phone 
or email) must include contact (name, phone number, etc.), the time, 
date, and location of the first discovery (and updated location 
information if known and applicable); Species identification (if known) 
or description of the animal(s) involved; condition of the animal(s) 
(including carcass condition if the animal is dead); observed behaviors 
of the animal(s), if alive; if available, photographs or video footage 
of the animal(s); and general circumstances under which the animal was 
discovered.
    (vi) In the event of a vessel strike of a marine mammal by any 
vessel associated with the Project or if project activities cause a 
non-auditory injury or death of a marine mammal, LOA Holder must 
immediately report the incident to NMFS. If in the Greater Atlantic 
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding 
Hotline (866-755-6622) and if in the Southeast Region (North Carolina 
to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). 
Separately, LOA Holder must immediately report the incident to NMFS 
Office of Protected Resources ([email protected]) and, 
if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO 
([email protected], [email protected]) or, if 
in the Southeast region (North Carolina to Florida), NMFS SERO 
([email protected]). The report must include the time, date, 
and location of the incident; species identification (if known) or 
description of the animal(s) involved; vessel size and motor 
configuration (inboard, outboard, jet propulsion); vessel's speed 
leading up to and during the incident; vessel's course/heading and what 
operations were being conducted (if applicable); status of all sound 
sources in use; 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; environmental conditions (e.g., 
wind speed and direction, Beaufort sea state, cloud cover, visibility) 
immediately preceding the strike; estimated size and length of animal 
that was struck; description of the behavior of the marine mammal 
immediately preceding and following the strike; if available, 
description of the presence and behavior of any other marine mammals 
immediately preceding the strike; 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 to the extent 
practicable, photographs or video footage of the animal(s). LOA Holder 
must immediately cease all on-water activities until the NMFS Office of 
Protected Resources 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 Office of Protected 
Resources may impose additional measures to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. LOA Holder may not 
resume their activities until notified by NMFS Office of Protected 
Resources.
    (14) LOA Holder must report any lost gear associated with the 
fishery surveys to the NMFS GARFO Protected Resources Division 
([email protected]) as soon as possible or within 24 
hours of the documented time of missing or lost gear. This report must 
include information on any markings on the gear and any efforts 
undertaken or planned to recover the gear.


Sec.  217.266  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
LOA Holder 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 October 12, 2028, the expiration date of 
this subpart.
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, LOA Holder must 
apply for and obtain a modification of the LOA as described in Sec.  
217.267.
    (d) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (e) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking

[[Page 62991]]

allowable under the regulations of this subpart.
    (f) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.


Sec.  217.267  Modifications of Letter of Authorization.

    (a) An LOA issued under Sec. Sec.  217.262 and 217.266 or this 
section for the activity identified in Sec.  217.260(a) shall be 
modified upon request by LOA Holder, provided that:
    (1) The 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 Office of Protected Resources 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), the LOA shall be modified, 
provided that:
    (1) NMFS Office of Protected Resources determines that the changes 
to the activity or the mitigation, monitoring, or reporting do not 
change the findings made for the regulations in this subpart and do not 
result in more than a minor change in the total estimated number of 
takes (or distribution by species or years), and
    (2) NMFS Office of Protected Resources may, if appropriate, 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 or this 
section for the activities identified in Sec.  217.260(a) may be 
modified by NMFS Office of Protected Resources under the following 
circumstances:
    (1) Through adaptive management, NMFS Office of Protected Resources 
may modify (including delete, modify, or add to) the existing 
mitigation, monitoring, or reporting measures (after consulting with 
LOA Holder regarding the practicability of the modifications), if doing 
so creates a reasonable likelihood of more effectively accomplishing 
the goals of the mitigation and monitoring;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA 
include, but are not limited to:
    (A) Results from LOA Holder's monitoring(s);
    (B) Results from other marine mammals and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by the regulations in 
this subpart or subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
Office of Protected Resources shall publish a notice of proposed LOA in 
the Federal Register and solicit public comment.
    (2) If NMFS Office of Protected Resources 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 or this section, 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. 2023-19351 Filed 9-12-23; 8:45 am]
BILLING CODE 3510-22-P