Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Atlantic Shores South Project Offshore of New Jersey, 65430-65521 [2023-19733]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 183 (Friday, September 22, 2023)]
[Proposed Rules]
[Pages 65430-65521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19733]



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Vol. 88

Friday,

No. 183

September 22, 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 Atlantic Shores South Project Offshore 
of New Jersey; Proposed Rule

Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 230907-0215]
RIN 0648-BL73


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Atlantic Shores South Project 
Offshore of New Jersey

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

ACTION: Proposed rule; proposed letter of authorization; request for 
comments.

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SUMMARY: NMFS has received a request from Atlantic Shores Offshore Wind 
LLC (Atlantic Shores), a joint venture between EDF-RE Offshore 
Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and 
Shell New Energies US LLC, for Incidental Take Regulations (ITR) and 
associated Letters of Authorization (LOAs) pursuant to the Marine 
Mammal Protection Act (MMPA). The requested regulations would govern 
the authorization of take, by Level A harassment and Level B 
harassment, of small numbers of marine mammals over the course of 5 
years (2025-2029) incidental to the construction of Atlantic Shores 
South located offshore of New Jersey 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 0499 (Lease Area) and associated ECCs (ECR Area). Atlantic Shores 
South would be divided into two projects: Project 1 and Project 2 (the 
combined hereafter referred to as the ``Project Area'') and Atlantic 
Shores has requested a 5-year LOA for each Project, both issued under 
these proposed regulations. Atlantic Shores' activities likely to 
result in incidental take include impact and vibratory pile driving and 
site assessment surveys using high-resolution geophysical (HRG) 
equipment within the Lease Area and Export Cable Corridor (ECC). NMFS 
requests comments on its proposed rule. NMFS will consider public 
comments prior to making any final decision on the promulgation of the 
requested ITR and issuance of the LOA; agency responses to public 
comments will be summarized in the final rule documenting our decision.

DATES: The regulations and LOA, if issued, would be effective January 
1, 2025 through December 31, 2029. Comments and information must be 
received no later than October 23, 2023.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to www.regulations.gov and enter NOAA-NMFS-2023-
0068 in the Search box. Click on the ``Comment'' icon, complete the 
required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Availability

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

Purpose and Need for Regulatory Action

    This proposed rule, if promulgated, would provide 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 
Atlantic Shores South within the Lease Area and along ECCs to two 
landfall locations in New Jersey. NMFS received a request from Atlantic 
Shores to incidentally take individuals of 16 species of marine mammals 
(9 species by Level A harassment and Level B harassment and 7 species 
by Level B harassment only), comprising 17 stocks, incidental to 
Atlantic Shores' 5 years of construction activities. No mortality or 
serious injury is anticipated or proposed for authorization. Please see 
the Legal Authority for the Proposed Action section below for 
definitions of harassment, serious injury, and incidental take.

Legal Authority for the Proposed Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated (when 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 
proposed for authorization in this proposed rule. Relevant definitions 
of MMPA statutory and regulatory terms are included below:
     U.S. Citizen--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

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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 
proposed rule describes permissible methods of taking and mitigation, 
monitoring, and reporting requirements for Atlantic Shores' proposed 
activities.

Summary of Major Provisions Within the Proposed Rule

    The major provisions of this proposed rule include:
     The proposed take of marine mammals by Level A harassment 
and/or Level B harassment;
     No mortality or serious injury of any marine mammal is 
anticipated or proposed to be authorized;
     The establishment of a seasonal moratorium on wind turbine 
generator (WTG), meteorological tower (Met Tower), and offshore 
substation (OSS) foundation impact pile driving during the months of 
highest North Atlantic right whale (Eubalaena glacialis) presence in 
the Project Area (December 1st-April 30th), unless NMFS allows for pile 
driving to occur in December;
     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 Atlantic Shores 
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 to reduce 
noise levels to those modeled assuming 10 decibels (dB);
     A delay to the start of foundation installation 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 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 shutdown zones;
     A requirement to implement sound field verification during 
impact pile driving of foundation piles 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;
     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 any LOA(s), if 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(s) may result in civil monetary penalties 
and knowing violations may result in criminal penalties (16 U.S.C. 
1375).

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 the proposed action (i.e., promulgation of regulations) 
and alternatives with respect to potential impacts on the human 
environment.
    Accordingly, NMFS proposes to adopt the BOEM Environmental Impact 
Statement (EIS) for Atlantic Shores South, provided our independent 
evaluation of the document finds that it includes adequate information 
analyzing the effects of promulgating the proposed regulations and 
issuance of the LOA(s) on the human environment. NMFS is a cooperating 
agency on BOEM's EIS. BOEM's Atlantic Shores South Draft Environmental 
Impact Statement for Commercial Wind Lease OCS-A 0499 (DEIS), was made 
available for public comment through a Notice of Availability on May 
19, 2023 (88 FR 32242), available at https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-south. The DEIS had a 45-day 
public comment period; the comment period was open from May 19, 2023 to 
July 3, 2023. Additionally, BOEM held two in-person public meetings, on 
June 21, 2023 and June 22, 2023, and two virtual public hearings, on 
June 26, 2023, and June 28, 2023.
    Information contained within Atlantic Shores' ITA application and 
this Federal Register document provide the environmental information 
related to these proposed regulations and associated 5-year LOA for 
public review and comment. NMFS will review all comments submitted in 
response to this proposed rulemaking prior to concluding our NEPA 
process or making a final decision on the requested 5-year ITR and 
associated LOAs.

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

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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)).
    Atlantic Shores' proposed 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-project/atlantic-shores-south.

Summary of Request

    On February 8, 2022, NMFS received a request from Atlantic Shores 
for the promulgation of regulations and the issuance of associated LOAs 
to take marine mammals incidental to construction activities associated 
with the Atlantic Shores South project located offshore of New Jersey 
in Lease Area OCS-A 0499 and associated ECCs. Atlantic Shores' request 
is for the incidental, but not intentional, take of a small number of 
16 marine mammal species (comprising 17 stocks) by Level A harassment 
and/or Level B harassment. Neither Atlantic Shores nor NMFS expects 
serious injury and/or mortality to result from the specified 
activities, and Atlantic Shores did not request, and NMFS is not 
proposing, to authorize mortality or serious injury of any marine 
mammal species or stock.
    In response to our questions and comments and following extensive 
information exchanges with NMFS, Atlantic Shores submitted a final, 
revised application on August 12, 2022 that NMFS deemed adequate and 
complete on August 25, 2022. The final version of the application is 
available on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores.
    On September 29, 2022, NMFS published a notice of receipt (NOR) of 
the adequate and complete application in the Federal Register (87 FR 
59061), requesting public comments and information related to Atlantic 
Shores' request during a 30-day public comment period. Due to a 
request, NMFS extended the public comment period for an additional 15 
days (87 FR 65193, October 28, 2022) for a total of a 45-day public 
comment period. During the 45-day NOR public comment period, NMFS 
received 5 comments and letters from the public, including a citizen, 
environmental non-governmental organization (eNGO), and local citizen 
group. NMFS has reviewed all submitted material and has taken these 
into consideration during the drafting of this proposed rule.
    In June 2022, Duke University's Marine Spatial Ecology Laboratory 
released updated habitat-based marine mammal density models (Roberts et 
al., 2016; Roberts et al., 2023). Because Atlantic Shores applied 
previous marine mammal densities to their analysis in their 
application, Atlantic Shores submitted a final Updated Density and Take 
Estimation Memo (herein referred to as Updated Density and Take 
Estimation Memo) on March 28, 2023 that included marine mammal 
densities and take estimates based on these new models. This memo can 
be found on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores.
    In January and February 2023, Atlantic Shores informed NMFS that 
the proposed activity had changed from what was presented in the 
adequate and complete MMPA application. Specifically, Atlantic Shores 
committed to installing only monopile WTG foundations for Project 1 
(and any found in the associated Overlap Area), as opposed to either 
monopile or jacket foundations. All WTGs built for Project 2 (and any 
remaining Overlap Area) may still consist of either monopiles or jacket 
foundations and remain unchanged as presented in the adequate and 
complete MMPA application. Additionally, all OSS foundations that could 
be developed across both Projects 1 and 2 continue to maintain build-
outs using only jacket foundations. Atlantic Shores provided a memo and 
supplemental materials outlining these changes to NMFS on March 31, 
2023. These supplemental materials can be found on NMFS' website at 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores.
    NMFS has previously issued seven Incidental Harassment 
Authorizations (IHAs), including one renewed IHA and one correction to 
an issued IHA, to Atlantic Shores authorizing take incidental to high-
resolution site characterization surveys offshore New Jersey (see 85 FR 
21198, April 16, 2020; 86 FR 21289, April 22, 2021 (renewal); 87 FR 
24103, April 22, 2022; and 88 FR 38821, June 14, 2023).
    To date, Atlantic Shores has complied with all the requirements 
(e.g., mitigation, monitoring, and reporting) of the previous IHAs and 
information regarding Atlantic Shores' take estimates and monitoring 
results may be found in the Estimated Take section. Final monitoring 
reports can be found on NMFS' website, along with previously issued 
IHAs: 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 would be required to comply with any and all 
applicable requirements contained within the final vessel speed rule. 
Specifically, where measures in any final vessel speed rule are more 
protective or restrictive than those in this or any other MMPA 
authorization, authorization holders would be required to comply with 
the requirements of the rule. Alternatively, where measures in this or 
any other MMPA authorization are more restrictive or protective than 
those in any final vessel speed rule, the measures in the MMPA 
authorization would remain in place. The responsibility to comply with 
the applicable requirements of any vessel speed rule would become 
effective immediately upon the effective date of any final vessel speed 
rule and, when notice is published on the effective date, NMFS would 
also notify Atlantic Shores 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

    Atlantic Shores has proposed to construct and operate two offshore 
wind projects (Project 1 and Project 2), collectively known as Atlantic 
Shores South in Lease Area OCS-A 0499. This lease area is located 
within the New Jersey Wind Energy Area (NJ WEA). Collectively, Atlantic 
Shores South will consist of up to 200 WTGs, 10 OSSs, and 1 Met Tower 
divided into two projects: Project 1 and Project 2. These Projects 
would assist the State of New Jersey to meet its renewable energy goals 
under the New Jersey Offshore Wind Economic Development Act (OWEDA). 
Atlantic Shores has been given an allowance by the New Jersey

[[Page 65433]]

Board of Public Utilities, through an Offshore Renewable Energy 
Certificate (OREC), to construct a facility capable of delivering 1,510 
megawatts (MW) of renewable energy to the State of New Jersey through 
Project 1 (owned by an affiliate of Atlantic Shores, called Atlantic 
Shores Offshore Wind Project 1, LLC). Atlantic Shores also intends to 
compete for a second OREC award through a competitive solicitation 
process to develop Project 2, which will be owned by another affiliate 
company of Atlantic Shores, Atlantic Shores Offshore Wind Project 2, 
LLC.
    The Project would consist of several different types of permanent 
offshore infrastructure, including up to 200 15-MW WTGs and up to 10 
OSSs; a single Met Tower; and OSS array cables and interconnector 
cables. All permanent foundations (WTGs, OSSs, and the single Met 
Tower) would be installed using impact pile driving only. For the 
permanent foundations, Atlantic Shores originally considered three 
construction scenarios for the completion of Projects 1 and 2. All 
three schedules assume a start year of 2026 for WTG, Met Tower, and OSS 
foundation installation. Construction Schedules 1 and 3 assume monopile 
foundations for all WTGs and the Met Tower across both Projects 1 and 
2. Construction Schedule 2 originally assumed a full jacket foundation 
buildout for both Project 1 and Project 2. However, Atlantic Shores has 
modified Schedule 2 to now assume that all WTGs and the Met Tower in 
Project 1 would be built using monopiles; the WTGs for Project 2 would 
still consist of either jacket or monopile foundations. In all 
Construction Schedules, the OSS foundations would always be built out 
using jacket foundations. However, these may vary in size between the 
two Projects (i.e., small, medium, or large OSSs). Under Schedules 1 
and 2, foundations would be constructed in 2 years. Under Schedule 3, 
all permanent foundations would be installed within a single year.
    Atlantic Shores would also conduct the following specified 
activities: temporarily install and remove, by vibratory pile driving, 
up to eight nearshore cofferdams to connect the offshore export cables 
to onshore facilities; deploy up to four temporary meteorological and 
oceanographic (metocean) buoys (three in Project 1 and one in Project 
2); several types of fishery and ecological monitoring surveys; the 
placement of scour protected, trenching, laying, and burial activities 
associated with the installation of the export cable route from OSSs to 
shore-based switching and substations and inter-array cables between 
turbines; HRG vessel-based site characterization and assessment surveys 
using active acoustic sources with frequencies of less than 180 
kilohertz (kHz); 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 
would be connected to onshore export cables at the sea-to-shore 
transition points located in Atlantic City, New Jersey (Atlantic 
Landfall Site) and in Sea Girt, New Jersey (Monmouth Landfall Site). 
From the sea-to-shore transition point, onshore underground export 
cables are then connected in series to switching stations/substations, 
overhead transmission lines, and ultimately to the grid connection. No 
detonations of unexploded ordnance or munitions and explosives of 
concern (UXOs/MECs) were planned to occur, nor are they included in 
this proposed rule. Therefore, these are not discussed further.
    Marine mammals exposed to elevated noise levels during impact and 
vibratory pile driving and site characterization surveys may be taken, 
by Level A harassment and/or Level B harassment, depending on the 
specified activity. No serious injury or mortality is anticipated or 
proposed for authorization.

Dates and Duration

    Atlantic Shores anticipates that activities with the potential to 
result in incidental take of marine mammals would occur throughout all 
5 years of the proposed regulations which, if issued, would be 
effective from January 1, 2025 through December 31, 2029. Based on 
Atlantic Shores' proposed schedule, the installation of all permanent 
structures would be completed by the end of November 2026. More 
specifically, the installation of WTG and OSS foundations is expected 
to occur between May-December in both 2026 and 2027. The temporary 
cofferdams used for nearshore cable landfall construction would be 
installed and subsequently removed anytime within 2025 and 2026. The 
Met Tower would be installed alongside WTGs in Project 1 (2026). 
Lastly, Atlantic Shores anticipates HRG survey activities using 
boomers, sparkers, and Compressed High-Intensity Radiated Pulses 
(CHIRPs) to occur annually and across the entire 5-year effective 
period of the proposed rule. These HRG surveys are not planned to occur 
concurrently to pile driving activities but they may occur across the 
entire Atlantic Shores South Lease Area and ECCs and may take place at 
any time of year.
    Atlantic Shores has provided a schedule for all of their proposed 
construction activities (Table 1). This table also presents a breakdown 
of the timing and durations of the activities proposed to occur during 
the construction and operation of the Atlantic Shores South project.

  Table 1--Estimated Activity Schedule to Construct and Operate Atlantic Shores South, per the Construction and
                                                 Operations Plan
----------------------------------------------------------------------------------------------------------------
                                                   Duration \a\      Expected        Project 1       Project 2
                    Activity                         (months)      schedule \b\     start date      start date
----------------------------------------------------------------------------------------------------------------
Onshore Interconnection Cable Installation......            9-12       2024-2025         Q1-2024         Q1-2024
Onshore Substation and/or Onshore Converter                18-24       2024-2026         Q1-2025         Q1-2025
 Station Construction...........................
HRG Survey Activities...........................             3-6       2025-2029         Q2-2025         Q3-2025
Export Cable Installation.......................             6-9            2025         Q2-2025         Q3-2025
Temporary Cofferdam Installation and Removal....           18-24       2025-2026         Q2-2025         Q3-2025
OSS installation and Commissioning..............             5-7       2025-2026         Q2-2026         Q2-2026
WTG Foundation and Met Tower Installation \c\...              10       2026-2027         Q1-2026     \c\ Q1-2026
Inter-Array Cable Installation..................              14       2026-2027         Q2-2026     \d\ Q3-2026
WTG Installation and Commissioning \e\..........              17       2026-2027         Q2-2026     \d\ Q1-2027
Met Buoy Deployments............................              36       2025-2027         Q1-2025         Q1-2025
Scour Protection Pre-Installation...............              17       2025-2027         Q2-2025         Q3-2025
Scour Protection Post-Installation..............              17       2025-2027         Q2-2025         Q3-2025
Site Preparation................................              60       2025-2029         Q1-2025         Q4-2029

[[Page 65434]]

 
Fishery Monitoring Surveys......................              60       2025-2029         Q1-2025         Q4-2029
----------------------------------------------------------------------------------------------------------------
Note: Q1 = January through March; Q2 = April through June; Q3 = July through September; Q4 = October through
  December.
\a\ These durations are a total across all years the activity may occur.
\b\ The expected timeframe is indicative of the most probable duration for each activity; the timeframe could
  shift and/or extend depending on supply chains.
\c\ Pile driving may occur from May to December, annually.
\d\ The expected timeframe is dependent on the completion of the preceding Project 1 activities (i.e., Project 1
  inter-array cable installation and WTG installation) and the Project 2 foundation installation schedule.
\e\ Atlantic Shores anticipates that WTGs for each Project would be commissioned starting in 2026 and 2027 but
  turbines would not become operational until 2028 and 2029.

    Atlantic Shores anticipates the installation of all offshore 
components for Atlantic Shores South are expected to take up to 3 years 
to complete. During the construction period, Atlantic Shores plans for 
Project 1 WTGs to be commissioned in 2026 and for Project 2 WTGs to be 
commissioned in 2027. Atlantic Shores anticipates that Projects 1 and 2 
would become operational in 2028 and 2029, respectively. However, these 
schedules are subject to change based on the contracting and permitting 
needs of the projects.

Specific Geographic Region

    Atlantic Shores would construct and operate Atlantic Shores South 
(both Project 1 and Project 2) in Federal and state waters offshore New 
Jersey within Lease Area OCS-A-0499 and associated ECCs (Figure 1). The 
Lease Area covers approximately 413.3 square kilometers (km\2\; 102,124 
acres) and begins approximately 8.7 miles (mi; 14 km) from the New 
Jersey shoreline. The area for Project 1 measures approximately 219.2 
km\2\ (54,175 acres) and is located in the western part of the Project 
Area; the area for Project 2 consists of approximately 182.2 km\2\ 
(45,013 acres) and is located along the eastern part of the Project 
Area. The Overlap Area, which would be split between Projects 1 and 2, 
consists of an area measuring approximately 11.9 km\2\ (2,936 acres). 
The water depths in the Lease Area range from 19 to 37 meters (m; 62 to 
121 feet (ft)) while water depths along the Atlantic City ECC range 
from 0 to 22 m (0 to 72 ft) and the Monmouth ECC ranges from 0 to 30 m 
(0 to 98 ft). Within the Project Area, water depths gradually increase 
based on distance from shore. Cable landfall construction work (i.e., 
temporary cofferdams) would be conducted in shallow waters of 4 to 7.5 
m (13.1 to 24.6 ft) deep. Sea surface temperatures range from 41 to 73 
degrees Fahrenheit ([deg]F; 5 to 23 degrees Celsius ([deg]C)).
    Atlantic Shores' specified activities would occur within the 
Northeast U.S. Continental Shelf Large Marine Ecosystem (NES LME), an 
area of approximately 260,000 km\2\ (64,247,399.2 acres) from Cape 
Hatteras in the south to the Gulf of Maine in the north. Specifically, 
the lease area and cable corridor are located within the Mid-Atlantic 
Bight sub-area of the NES LME which extends between Cape Hatteras, 
North Carolina, and Martha's Vineyard, Massachusetts, extending 
westward into the Atlantic to the 100-m isobath. In the Middle Atlantic 
Bight, the pattern of sediment distribution is relatively simple. The 
continental shelf south of New England is broad and flat, dominated by 
fine grained sediments. Most of the surficial sediments on the 
continental shelf are sands and gravels. Silts and clays predominate at 
and beyond the shelf edge, with most of the slope being 70-100 percent 
mud. Fine sediments are also common in the shelf valleys leading to the 
submarine canyons. There are some larger materials, left by retreating 
glaciers, along the coast of Long Island and to the north and east.
    Primary productivity is highest in the nearshore and estuarine 
regions, with coastal phytoplankton blooms initiating in the winter and 
summer, although the timing and spatial extent of blooms varies from 
year to year. The relatively productive continental shelf supports a 
wide variety of fauna and flora, making it important habitat for 
various benthic and fish species and marine mammals, including but not 
limited to, fin whales, humpback whales, North Atlantic right whales, 
and other large whales as they migrate through the area. The Cold Pool, 
a bottom-trapped cold, nutrient-rich pool and distinct oceanographic 
feature of the Mid-Atlantic Bight, creates habitat that provides 
thermal refuge to cold water species in the area (Atlantic Shores South 
Construction and Operations Plan (COP), Volume II; Lentz, 2017). Cold 
Pool waters, when upwelled to the surface, promote primary productivity 
within this region (Voynova et al., 2013).
    The seafloor in the Atlantic Shores South Project Area is dynamic 
and changes over time due to current, tidal flows, and wave conditions. 
The benthic habitat of the Project Area contains a variety of seafloor 
substrates, physical features, and associated benthic organisms. The 
soft bottom sediments in the Project Area are reflective of the rest of 
the Mid-Atlantic Bight region, and are characterized by fine sand as 
well as gravel and silt/sand mixes (Milliman, 1972; Steimle and Zetlin, 
2000). The offshore Project Area is dominated by fine, medium, and 
coarse sand. The ECCs consist of medium to coarse sand offshore. The 
Atlantic City ECC is characterized by fine sand nearshore while the 
Monmouth ECC largely consists of medium and fine sand in the nearshore 
portion (Atlantic Shores, 2021). The benthic community within the 
offshore Project Area is characterized by echinoderms, bivalves, 
gastropods, polychaetes, oligochaetes, amphipods, crustaceans, and 
cnidarians (Atlantic Shores, 2021).
    Additional information on the underwater environment's physical 
resources can be found in the COP for the Atlantic Shores South project 
(Atlantic Shores, 2021) available at https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-offshore-wind-construction-and-operations-plan.

BILLING CODE 3510-22-P

[[Page 65435]]

[GRAPHIC] [TIFF OMITTED] TP22SE23.000

Figure 1--Project Location

BILLING CODE 3510-22-C

Detailed Description of Specified Activities

    Below we provide detailed descriptions of Atlantic Shores' proposed 
activities, explicitly noting those that are anticipated to result in 
the take of marine mammals and for which an incidental take 
authorization is requested. Additionally, a brief

[[Page 65436]]

explanation is provided for those activities that are not expected to 
result in the take of marine mammals.
WTG, OSS, and Met Tower Foundation Installation
    Atlantic Shores South, in total, includes up to 200 WTGs, a single 
Met Tower, and up to 10 OSS. As described above, Atlantic Shores has 
proposed to divide Atlantic Shores South into two projects. Project 1 
and Project 2 (including any relevant Overlap Area allocated) would be 
electrically distinct in all ways and energy produced from the 
Projects' OSSs would transmit energy to shore via 230-275 kilovolts 
(kV) High Voltage Alternating Current (HVAC) and/or 320-525 kV high 
voltage direct current (HVDC) export cables (a maximum of eight cables 
would be used) to two landfall locations located near Atlantic City, 
New Jersey and at the Monmouth site located near Sea Girt, New Jersey. 
Project 1 would include 105 to 111 WTGs on monopile foundations while 
Project 2 would include 89 to 95 WTGs on either monopile or jacket 
foundations. Monopiles would be either 12 m (39.37 ft) or 15 m (49.21 
ft) in diameter. The number of OSSs in each project is dependent upon 
the foundation size. Project 1 may contain five small, two medium, or 
two large OSSs while Project 2 may contain up to five small, three 
medium, or two large OSSs. OSSs would be located on jacket foundations 
using 5 m (16.4 ft) pin piles and could consist of a four-legged (small 
OSS), six-legged (medium OSS), or eight-legged (large OSS) design. 
Atlantic Shores would also construct a Met Tower in Project 1 on a 
monopile foundation. Atlantic Shores has indicated that monopiles, 
suction bucket jackets, mono-suction buckets, and gravity-base 
structures may also be used (particularly for the construction of the 
Met Tower and depending on the size of OSSs built, per Atlantic Shores' 
Project Design Envelope (PDE) refinement memo). However, for purposes 
of this analysis, the use of suction buckets and gravity-bases to 
secure bottom-frame foundations are not being considered further in 
this analysis as the installation of bottom-frame foundations using 
suction buckets or gravity-base foundations are not anticipated to 
result in noise levels that would cause harassment to marine mammals. 
Small OSSs built on monopile foundations would produce less Level B 
harassment than if they were built on jacket foundations, as indicated 
in the ITA application, as more piles would need to be driven by an 
impact hammer. Hence, we limit our analysis in this proposed rule to 
foundations which require the maximum amount of impact pile driving 
possible.
    A monopile foundation typically consists of a single steel tubular 
section with several sections of rolled steel plate welded together and 
secured to the seabed. Secondary structures on each WTG monopile 
foundation could include a boat landing or alternative means of safe 
access, ladders, a crane, and other ancillary components. A typical 
monopile installation sequence begins with the monopiles transported 
directly to the Project Area for installation or to the construction 
staging port by an installation vessel or a feeding barge. At the 
foundation location, the main installation vessel upends the monopile 
in a vertical position in the pile gripper mounted on the side of the 
vessel. The hammer is then lifted on top of the pile and pile driving 
commences with a soft-start and proceeds to completion. Piles are 
driven until the target embedment depth is met, then the pile hammer is 
removed and the monopile is released from the pile gripper. Once 
installation of the monopile is complete, the vessel moves to the next 
installation location.
    All monopile foundations (i.e., 15-m or 12-m) would be installed 
using a 4,400 kilojoule (kJ) impact hammer (i.e., Menck MHU 4400S) to 
obtain a maximum penetration depth of 60 m (197 ft). Atlantic Shores 
estimates that a 15-m monopile could require up to 15,387 strikes at a 
rate of up to 30 blows per minute (bpm) to reach the target penetration 
depth, while a 12-m monopile could require 12,350 total strikes at a 
rate of 30 bpm. Each monopile is estimated to take between 7 to 9 hours 
to install using an impact hammer. In most cases, Atlantic Shores 
anticipates installing one monopile per day. However, they may install 
up to two monopiles per day if possible. For jacket foundations, pin 
piles would be installed using a 2,500 kJ hammer (i.e., IHC S-2500) to 
reach a maximum penetration depth of 70 m (230 ft). Each pin pile would 
need an estimated 3 hours of impact hammering to reach the target 
penetration depth, with up to 12 hours needed per day to install four 
pin piles (one jacket foundation). Impact hammering for pin piles would 
require up to 6,750 strikes at a rate of up to 30 bpm.
    Jackets would be lifted off the transport or installation vessel 
and lowered to the seabed with the correct orientation. The piles would 
be driven to the engineered depth, following the same process described 
above for monopiles. The jacket piles are expected to be pre-piled 
(i.e., the jacket structure will be set on pre-installed piles) or 
post-piled (i.e., the jacket is placed on the seafloor and piles are 
subsequently driven through guides at the base of each leg). Figure 2 
in Atlantic Shores' ITA application provides a conceptual design of 
monopile and jacket foundations that may be used for Atlantic Shores 
South.
    No concurrent pile driving is planned to occur (i.e., only one pile 
would be installed at any given time). Pile driving would not be 
initiated at night. Nighttime pile driving is not planned; however, if 
a pile is started 1.5 hours prior to civil sunset and does not pause 
for more than 30 minutes once visibility is diminished due to darkness 
during daylight and would necessitate being finished during nighttime 
hours, Atlantic Shores may complete impact pile driving during night to 
avoid stability or safety issues. Pile driving associated with 
foundation installation could occur within the 8-month period of May 
through December, annually.
    Atlantic Shores presented three schedules in their application to 
construct Atlantic Shores South which contained various foundation 
types for both projects. However, since that time, Atlantic Shores has 
narrowed their scope for Project 1 which effectively eliminates 
Schedule 1 and Schedule 3 from potential scenarios. Atlantic Shores has 
determined all WTG and Met Tower foundations in Project 1 would be 
monopiles (maximum size of 15-m). However, they retained the 
description for Project 2 such that either monopiles or jacket 
foundations could be used. For both Project 1 and Project 2, OSSs would 
still be built out using jacket foundations. The 2-year construction 
timeline described for Schedule 2 in their application remains valid. 
Hence, NMFS is considering this modified Schedule 2 for purposes of 
this proposed rule.
    All foundation installation for Project 1 plus the Overlap Area 
(i.e., 112 WTGs, 1 Met Tower, and 2 OSSs) would occur during 
construction year 1. For Project 2, 6 WTG foundations would be 
installed in year 1 and 89 WTG foundations and 2 OSS would be installed 
in construction year 2. All foundations would be installed in 2026 and 
2027, the second and third year of the proposed effective period of 
this rulemaking. Based on the overall pile driving schedule, Atlantic 
Shores estimates up to 112 pile driving days for WTGs/Met Tower and up 
to 12 days for OSS pin pile installation would be needed in 
construction year 1 (2026). Up to 89 days for WTG installation would be 
needed in construction year 2 (2027) with another 12 days necessary

[[Page 65437]]

for the installation of Project 2's OSSs. This estimates a total of 201 
days needed to install WTGs (on either a jacket or monopile foundation) 
and up to 24 days for OSS jacket foundation installation.
    Installation of the WTG, Met Tower, and OSS foundations is 
anticipated to result in the take, by Level A harassment and Level B 
harassment, of marine mammals due to noise generated during impact pile 
driving. No vibratory pile driving or drilling of foundations would 
occur.
Cable Landfall Construction
    Atlantic Shores would bring the Atlantic Shores South offshore 
export cables to shore at the Atlantic landfall site for Project 1, 
located east of the Project Area and the Monmouth landfall site for 
Project 2, located north of the Project Area (see Figure 1). The 
Atlantic Shores South export cable would be connected to the onshore 
transmission cable at the landfall locations using horizontal 
directional drilling (HDD) and potentially a backhoe dredge. Atlantic 
Shores would construct temporary cofferdams using sheet piles to 
temporarily ``dewater'' a specified enclosed area using pumps to allow 
for excavation of the HDD pit. Once excavation and drilling are 
completed and the HDD conduit and export cable are installed, the 
seabed would be restored and water would be allowed to flow back in, 
following the removal of the temporary cofferdam.
    Atlantic Shores anticipates installing up to eight temporary 
cofferdams, with four located at each of two main landfall locations 
(although fewer may be needed). Each cofferdam is anticipated to 
measure 30 m x 8 m (98.4 ft x 26.2 ft) in size and would be made up of 
up to 109 sheet piles which would be both installed and removed by 
vibratory pile driving methods. This yields a total of 436 sheet piles 
across all four cofferdams at each landfall location, yielding a total 
of 872 sheet piles for both landfall locations. Atlantic Shores 
estimates they can install or remove approximately 13-14 sheet piles 
per day, assuming 8 hours of vibratory pile driving would occur within 
any 24-hour period. Given different depths found at the Monmouth and 
Atlantic landfall sites, the work at Monmouth would take longer (due to 
deeper waters). The shallower depths found at the Atlantic landfall 
site would necessitate shorter vibratory pile driving durations. Hence, 
up to 16 days of work (8 days to install, 8 days to remove) would be 
required for all cofferdams at the Monmouth landfall site and up to 12 
days of work (6 days to install, 6 days to remove) would be necessary 
for all cofferdams at the Atlantic landfall site. In total, to install 
and remove all eight cofferdams across both sites, 28 days of vibratory 
hammering/removal would need to occur. Installation of the temporary 
cofferdams is anticipated to result in the take, by Level B harassment, 
of marine mammals due to noise during vibratory driving.
Marine Site Assessment Surveys (e.g., HRG)
    Atlantic Shores would conduct site assessment surveys in the 
Project Area, including the Lease Area and along potential ECCs to 
landfall locations in New Jersey throughout construction and operation 
occurring within the 5-year period of the proposed rulemaking. These 
activities would include:
     Shallow penetration sub-bottom profiler (pingers/CHIRPs) 
to map the near surface stratigraphy (top 0 ft to 16 ft (0 m to 5 m) 
soils below seabed);
     Medium penetration sub-bottom profiler (CHIRPs/parametric 
profilers/sparkers) to map deeper subsurface stratigraphy as needed 
(soils down to 246 ft (75 m) to 328 ft (100 m) below the seabed);
     Grab sampling to validate seabed classification using 
typical sample sizes between 0.1 square meters (m\2\) and 0.2 m\2\;
     Depth sounding (multibeam depth sounder and single beam 
echosounder) to determine water depths and general bottom topography 
(currently estimated to range from approximately 16 ft (5 m) to 131 ft 
(40 m) in depth);
     Seafloor imaging (side scan sonar survey) for seabed 
sediment classification purposes, to identify natural and man-made 
acoustic targets resting on the bottom as well as any anomalous 
features; and
     Magnetic intensity measurements (gradiometer) for 
detecting local variations in regional magnetic field from geological 
strata and potential ferrous objects on and below the bottom.
    These site assessment surveys may utilize acoustic equipment such 
as multibeam echosounders, side scan sonars, shallow penetration sub-
bottom profilers (SBPs) (e.g., CHIRP non-parametric SBP), medium 
penetration sub-bottom profilers (e.g., sparkers), and ultra-short 
baseline positioning equipment, some of which are expected to result in 
the take of marine mammals. Surveys would occur annually, with 
durations dependent on the activities occurring in that year (i.e., 
construction years versus operational years). Use of gradiometers and 
grab sampling techniques do not have the potential to result in 
harassment of marine mammals (e.g., 85 FR 7926, February 12, 2020) and 
will not be discussed further. Of the HRG equipment proposed for use, 
the following sources have the potential to result in take of marine 
mammals:
     Shallow penetration SBPs to map the near-surface 
stratigraphy (top 0 to 5 m (0 to 16 ft) of sediment below seabed). A 
CHIRP system emits sonar pulses that increase in frequency over time. 
The pulse length frequency range can be adjusted to meet project 
variables. These are typically mounted on the hull of the vessel or 
from a side pole.
     Medium penetration SBPs (sparkers) to map deeper 
subsurface stratigraphy as needed. A sparker creates acoustic pulses 
from 50 Hz to 4 kHz omni-directionally from the source that can 
penetrate several hundred meters into the seafloor. These are typically 
towed behind the vessel with adjacent hydrophone arrays to receive the 
return signals.
    Table 2 identifies all the representative HRG survey equipment that 
may be used during construction of Atlantic Shores South.

                                              Table 2--Summary of Representative Site Assessment Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Operational                          Typical pulse
   HRG survey equipment (sub-      Representative      Operating frequency       source level     Beamwidth ranges   durations RMS90    Pulse repetition
        bottom profiler)           equipment type          ranges (kHz)         ranges (dBRMS)       (degrees)        (millisecond)        rate (Hz)
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker........................  Applied Acoustics   0.01 to 1.9 \a\........  203 \a\..........  180..............  3.4 \a\..........  2.
                                  Dura-Spark 240 *.
                                 Geo Marine Geo-     0.2 to 5...............  195 \b\..........  180..............  7.2 \b\..........  0.41.
                                  Source *.
Compressed High-Intensity        Edgetech 2000-DSS   2 to 16................  195 \c\..........  24 \d\...........  6.3..............  10.
 Radiated Pulses (CHIRP).         *.
                                 Edgetech 216 *....  2 to 16................  179 \e\..........  17, 20, or 24....  10...............  10.

[[Page 65438]]

 
                                 Edgetech 424 *....  4 to 24 \f\............  180 \f\..........  71 \f\...........  4................  2.
                                 Edgetech 512i *...  0.7 to 12 \f\..........  179 \f\..........  80 \f\...........  9................  8.
                                 Pangeosubsea Sub-   4 to 12.5 \d\..........  190 \d\ \g\......  120 \d\..........  4.5..............  44.
                                  bottom Imager\TM\
                                  *.
INNOMAR........................  INNOMAR SES-2000    85 to 115 \d\..........  241..............  2 \d\............  2................  40.
                                  Medium-100
                                  Parametric \h\.
                                 INNOMAR deep-36     30 to 42...............  245..............  1.5..............  0.15 to 5........  40.
                                  Parametric \h\.
Gradiometer....................  Geometrics G-882    n/a....................  n/a..............  n/a..............  n/a..............  n/a.
                                  Marine
                                  Magnetometer
                                  Transverse
                                  Gradiometer Array.
Side-scan Sonar................  EdgeTech 4200.....  100 or 400.............  201 at 100 kHz;    0.5[deg] x         1.1 to 7.2 at 100  5 to 11 or 5 to
                                                                               205 at 400 kHz.    50[deg]-0.26[deg   kHz; 1.1 to 1.3    20 dependent on
                                                                                                  ] x 50[deg].       at 400 kHz.        pulse duration.
                                 Edgetech 4205 Tri-  300, 600, or 900.......  220 at 300 kHz;    0.5[deg] x         1.0 to 3.0 at 300  5 to 11 or 10 to
                                  Freq.                                        2019 at 600 kHz;   50[deg]-0.26[deg   kHz; 0.5 to 5.0    25 dependent on
                                                                               221 at 900 kHz.    ] x 50[deg].       at 600 kHz; 0.4-   pulse duration.
                                                                                                                     2.8 at 900 kHz.
Multibeam Echosounder..........  Dual Head           200 to 400.............  204.5............  0.4 to 1.5.......  0.014 to 12......  50.
                                  Kongsberg EM2040.
                                 Norbit iWMBS......  200 to 700.............  220..............  0.5 to 1.9.......  0.5..............  Up to 60.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: RMS stands for root mean square, SPL stands for sound pressure level; * = Sources expected to cause take of marine mammals and that were carried
  forward into the take estimation analysis.
\a\ The operational source level for the Dura-Spark 240 is assigned based on the value closest to the field operational history of the Dura-Spark 240
  (operating between 500 to 600 joules (J)) found in Table 10 in Crocker and Fratantonio (2016), which reports a 203 dBRMS for 500 J source setting and
  400 tips. Because Crocker and Fratantonio (2016) did not provide other source levels for the Dura-Spark 240 near the known operational range, the SIG
  ELC 820 @750 J at 5 m depth assuming an omnidirectional beam width was considered as a proxy or comparison to the Dura-Spark 240. The corresponding
  203 dBRMS level is considered a realistic and conservative value that aligns with the history of operations of the Dura-Spark 240 over 3 years of
  surveys by Atlantic Shores. Operational information was provided by Atlantic Shores and assumes that the Geo Marine Survey System would be operating
  at 400 J.
\b\ Information on the source level was obtained from Gene Andella (Edgetech) with JASCO Applied Sciences.
\c\ Manufacturer specifications and/or correspondence with manufacturer.
\d\ Considered EdgeTech Chirp as a proxy source for levels as the Chirp512i has similar operation settings as the Chirp 2000-DSS tow vehicle. See Table
  18 in Crocker and Fratantonio (2016) for source levels for 100% power and 2-12 kHz.
\e\ Values from Crocker and Fratantonio (2016) for 100% power and comparable bandwidth.
\f\ For a frequency of 4 kHz.
\g\ Parametric sub-bottom profilers do not have the potential to harass marine mammals due to their lower frequencies and extremely narrow beamwidth
  (see 87 FR 24103, April 22, 2022). Therefore, these sources were not considered in calculating the maximum r value for the ensonified area
  calculation.
\h\ The specification sheet indicates a peak source level of 247 dB re 1 [mu]Pa m (based on personal communications with Atlantic Shores to Jens
  Wunderlich, Innomar, 7-18-2019). The average difference between the peak SPL source levels for sub-bottom profilers measured by Crocker and
  Fratantonio (2016) was 6 dB. Atlantic Shores therefore estimates the SPL source level is 241 dB re 1 [mu]Pa m.

    While the Applied Acoustics Dura-Spark 240 is planned to be used 
during project activities, the equipment specifications and subsequent 
analysis are based on the SIG ELC 820 with a power level of 750 J at a 
5 meter depth (Crocker and Fratantonio (2016)). However, while 750 J 
was used as a worst-case scenario to conservatively account for take of 
marine mammals as these higher electrical outputs would only be used in 
areas with denser substrates (700 to 800 J), Atlantic Shores expects a 
more reasonable power level to be 500 to 600 J based on prior 
experience with HRG surveys.
    Of the sources described in Table 2 above, the only sources 
expected to result in the harassment of marine mammals are CHIRPs and 
sparkers. Given the combination of characteristics of the non-impulsive 
sources planned for use, which include operating frequencies mostly 
above 180 kHz (considered outside of the hearing range of most marine 
mammals) and/or very narrow beamwidths, harassment is not expected to 
result from the operation of any of these sources; therefore, they are 
not considered further in this proposed rule.
    Atlantic Shores' HRG surveys would utilize up to three vessels 
working concurrently in different sections of the Lease Area and ECCs. 
No HRG surveys would occur concurrently with impact pile driving 
activities. All vessels would be operating several kilometers apart at 
any one time. On average, 55 km (34.2 mi) would be surveyed each survey 
day, per vessel, at a speed of approximately 6.5 km/hour (3.5 knots 
(kn; 4 miles per hour (mph))) on a 24-hour basis. During the 5 years 
the proposed rule would be effective, an estimated area of 413.3 km\2\ 
(102,124 acres) would be surveyed across the Project Area. Atlantic 
Shores anticipates up to 60 days of survey activities would occur 
annually, with 300 days total expected throughout the entire 5-year 
effective period of the proposed rule.
Meteorological Buoy Deployment
    Atlantic Shores will also deploy up to four meteorological and 
oceanographic (called ``metocean'') buoys within the Atlantic Shores 
South Project Area. Three of these would be located in Project 1 and 
one would be located in Project 2. These buoys would be designed to 
collect different data than obtained by the Met Tower and would only be 
anticipated to collect data (e.g., wind resource and metocean data) 
during 1-2 years of the pre-construction period to support the 
development of Atlantic Shores' projects. Buoys would be deployed 
approximately 6 months prior to the start of construction and would 
remain deployed throughout construction activities. Deployed buoys 
would be decommissioned after construction was completed.
    At the time of drafting this proposed rule, Atlantic Shores had not 
chosen a buoy supplier, so exact design specifics are not certain. 
However, the buoys will be similar, though smaller, than those deployed 
in Atlantic Shores' Site Assessment Plan (SAP). We discuss those here 
for context and to support our analysis of likely buoy effects. 
Available information on Atlantic Shores' proposed buoy deployments is 
also available in their COP (Volume I, Section 4.6.2 Temporary Metocean 
Buoys).
    Under the SAP, four buoys (specifically the Fugro SEAWATCH\TM\ Wind 
light detection and ranging (LiDAR) buoy) would be deployed (numbered 
IA1-IA4 in the SAP, with one located in the northern portion of the 
project (IA2) and three located in the

[[Page 65439]]

middle and southern portion (IA1, IA3, and IA4) (Figure1-1; Tetra Tech, 
2020). The mooring design for the buoys consists of galvanized chains 
that would connect the buoy to a large link steel chain weight located 
on the seafloor. A second steel link chain would connect to a water-
level acoustic modem via a bottom weight. The chain for the buoy would 
attach to the base of the SEAWATCH\TM\ Wavescan platform via a long 
keel structure. The diameter of the link in the chafe section of the 
mooring is 19 millimeters. The maximum area that the anchor chain could 
sweep is estimated as 3.1 acres (0.0048 square miles (mi\2\)), assuming 
the chain's radius is 63 meters (207 feet). The approximate sweep of 
the acoustic modem's chain is approximately 50 meters (164 ft). Figure 
3-2 in the SAP demonstrates the buoy mooring design (Tetra Tech, 2020).
    Entanglement can occur if wildlife becomes immobilized in survey 
lines, cables, nets, or other equipment that is moving through the 
water column. Atlantic Shores incorporated BOEM's Mid-Atlantic 
Environmental Assessment (EA), which references a NMFS Biological 
Opinion on the Cape Wind Energy Project (NMFS, 2010) in Nantucket Sound 
where metocean buoys were used. The EA, as well as a study by Harnois 
et al. (2015) assessed the potential entanglement risk of metocean buoy 
mooring systems on marine mammals and determined that there is an 
extremely low probability that animals would interact with the buoys, 
which would indicate a low risk of entanglement. Based on the high 
tension of the chain proposed for use, as well as the material of the 
chain (galvanized chains versus rope), Harnois et al. (2015) determined 
that the risk of entanglement to marine mammals was low. Furthermore, 
given that these buoys would not have any active acoustic components 
and do not pose a risk of take of marine mammals, Atlantic Shores did 
not request, and NMFS does not propose to authorize, take associated 
with the metocean buoys and these are not analyzed further in this 
document.
Cable Laying and Installation
    Cable burial operations would occur both in the Lease Area and ECCs 
from the lease area to shore. The inter-array cables would connect the 
WTGs to any one of the OSSs. Cables within the ECCs would carry power 
from the OSSs to shore at the landfall locations in Atlantic City, New 
Jersey and Sea Girt, New Jersey. The offshore export and inter-array 
cables would be buried in the seabed at a target depth of up to 1.5 m 
(5 ft) to 2 m (6.6 ft), although the exact depth will depend on the 
substrate in the area. All cable burial operations would follow 
installation of the WTG and OSS foundations, as the foundations must be 
in place to provide connection points for the export cables and inter-
array cables.
    Cable laying, cable installation, and cable burial activities 
planned to occur during the construction of the Atlantic Shores South 
project would include the following methods: simultaneous lay and 
burial for export cable installation, post-lay burial for inter-array 
cables, and pre-lay trenching for cable burial that is necessary to be 
deeper than target depth and/or cable burial in firmer ground such as 
clays or dense sands. Atlantic Shores is evaluating the use of the 
following techniques to achieve the target cable burial depth: jet 
plowing for simultaneous lay and burial, jet trenching for simultaneous 
lay and burial or post-lay burial in soft soils, and in a more limited 
capacity, the use of mechanical trenching for pre-lay trenching, 
simultaneous lay and buy, and post-lay burial in areas more challenging 
for cable burial. As the noise levels generated from cable laying and 
installation work are low, the potential for take of marine mammals to 
result is discountable. Atlantic Shores is not requesting and NMFS is 
not proposing to authorize take associated with cable laying 
activities. Therefore, cable laying activities are not analyzed further 
in this document.
Site Preparation and Scour Protection
    For export cable installation, site preparation typically includes 
required sand bedform leveling, boulder clearance, pre-lay grapnel 
runs, and a pre-lay survey. Due to the presence of mobile sand 
bedforms, some dredging may be required prior to cable laying. Sand 
bedform leveling may include the removal of tops of sand bedforms and 
is typically undertaken where cable exposure is predicted over the 
lifetime of a project due to seabed mobility. This facilitates cable 
burial below the reference seabed. Alternatively, sand bedform removal 
may be undertaken where slopes become greater than approximately 10 
degrees (17.6 percent), which could cause instability to the burial 
tool. If necessary to remove sand bedforms, Atlantic Shores will clear 
the area using subsea excavation methods. The work could be undertaken 
by traditional dredging methods such as a trailing suction hopper. 
Controlled flow excavation may be used to induce water currents to 
force the seabed into suspension, where it would otherwise be directed 
to eventually settle (Atlantic Shores, 2021). A route clearance plow 
may be used to push sand aside and clear the way for cable 
installation. In areas of hard or rocky seabed substrate, cutterhead 
dredging may be used in place of the trailing suction hopper dredge. 
This method involves the use of a larger drill and may be necessary 
along the ECCs. Backhoe dredging may be used in shallow, nearshore 
areas where only small amounts of material need to be removed. This 
equipment operates in a similar way to an onshore backhoe excavator yet 
is mounted on a small barge (Atlantic Shores, 2021).
    Boulder clearance may also be required in targeted locations to 
clear boulders along the ECCs, inter-array cable routes, and/or 
foundations prior to installation. Boulder removal can be performed 
using a combination of methods to optimize clearance of boulder debris 
of varying size and frequency. Boulder clearance trials are normally 
performed prior to wide-scale seafloor preparation activities to 
evaluate efficacy of boulder clearing techniques. If boulders are 
encountered during installation activities, Atlantic Shores would move 
them from the ECCs using subsea grabs as the presence of boulders is 
expected to be minimal and this type of technique has minimal impacts 
on the seafloor. A boulder grab involves a grab most likely deployed 
from a dynamic positioning offshore support vessel being lowered to the 
seabed, over the targeted boulder. Once ``grabbed,'' the boulder is 
relocated away from the cable route and/or foundation location. A 
displacement plow may be used if more boulders than expected are 
encountered. This type of plow has a simple Y-shaped design and clears 
an approximately 10-m wide corridor. The plow is towed along the 
seafloor by a vessel and displaces boulders along a clearance path as 
it passes over the seabed surface (Atlantic Shores, 2021). The size of 
boulders that can be relocated is dependent on a number of factors 
including the boulder weight, dimensions, embedment, density and ground 
conditions. Typically, boulders with dimensions less than 2.5 m (8 ft) 
can be relocated with standard tools and equipment.
    Additionally, pre-lay grapnel runs may be undertaken to remove any 
seafloor debris along the ECCs. A specialized vessel will tow an 
approximately 1-m wide grapnel train consisting of a series of hooks 
designed to snag debris. Tension measurements on the grapnel train 
towing rope will indicate whether the hooks have caught debris. 
Atlantic Shores plans to make three passes with the grapnel train along 
each cable alignment.

[[Page 65440]]

    Atlantic Shores would conduct pre-lay surveys along the final 
planned cable alignments prior to cable installation. The purpose of 
these surveys would be to confirm seabed morphology and bathymetry and 
to detect any objects that may impact the future infrastructure. Multi-
beam echosounders would be used to survey a 20-m (65.6-ft) wide 
corridor centered on the cable alignments to examine the total width of 
the seabed area to be disturbed by cable installation activities 
(Atlantic Shores, 2021).
    Atlantic Shores would also deposit rock around each foundation as 
scour protection. Installation of the rock would be conducted from a 
fallpipe vessel using a pipe that extends to just above the seafloor to 
deposit rock contained in the vessel's hopper in a controlled manner. 
Scour protection placement would occur prior to and/or after foundation 
installation.
    NMFS does not expect scour protection placement or site preparation 
work, including boulder removal, sand leveling (i.e., dredging) pre-lay 
grapnel runs, and pre-lay surveys, to generate noise levels that would 
cause take of marine mammals. Dredging, bedform leveling, and boulder 
clearance is expected to be extremely localized at any given time, and 
NMFS expects that any marine mammals would not be exposed at levels or 
durations likely to disrupt behavioral patterns (i.e., migrating, 
foraging, calving, etc.). Therefore, the potential for take of marine 
mammals to result from these activities is so low as to be 
discountable. Atlantic Shores did not request and NMFS is not proposing 
to authorize any takes associated with seabed preparation activities; 
therefore, they are not analyzed further in this document.
Vessel Operation
    During construction of the project, Atlantic Shores estimates that 
approximately 550 to 2,050 vessel round trips to the Lease Area will 
occur annually during the projects' operations, which is an average of 
two to six vessel trips per day in support of both Project 1 and 2 (COP 
Volume 1 section 5.6). Atlantic Shores expects up to 51 vessels to be 
used during construction, though a maximum of 16 vessels are expected 
to operate at one time for a given construction activity. Construction 
vessels would make an estimated 1,745 trips to the Project Area, 
including trips from the future New Jersey Wind Port, Paulsboro Marine 
Terminal, and Repauno Port and Rail Terminal in New Jersey; Portsmouth 
Marine Terminal in Virginia; and the Port of Corpus Christi in Texas. 
Atlantic Shores generally expects 5 to 16 maintenance vessels to 
operate at a given time, though up to 22 vessels may be required in 
some repair scenarios. Maintenance vessels would make an estimated 
1,861 trips to the Project Area, the majority of which would originate 
from the O&M facility in Atlantic City, with a smaller number 
originating from the New Jersey Wind Port (DEIS Section 3.6.6).
    Atlantic Shores plans that their vessel usage will be divided into 
different campaigns, including: foundation installation, scour 
protection installation, OSS installation, WTG installation, inter-
array cable installation, inter-link cable installation (if needed), 
and export cable installation. When performing the specific 
construction task, the vessels would either anchor, jack-up, or 
maintain their position using dynamic positioning systems, where a 
continually adjusting propulsion system keeps the vessel in a single 
location.
    Many of these vessels will remain in the Wind Farm Area or ECC for 
days or weeks at a time, potentially making only infrequent trips to 
port for bunkering and provisioning, as needed. The actual number of 
vessels involved in the project at one time is highly dependent on the 
project's final schedule, the final design of the project's components, 
and the logistics needed to ensure compliance with the Jones Act, a 
Federal law that regulates maritime commerce in the United States. 
Table 3 below shows the number of vessels and the number of vessel 
trips anticipated during construction activities related to Atlantic 
Shores South.

 Table 3--Type and Number of Vessels and Number of Vessel Trips Anticipated During Construction Activities Over
                                the Effective Period of the Requested Rulemaking
----------------------------------------------------------------------------------------------------------------
                                                                                                  Approximated
                Vessel role                           Vessel type           Number of vessels  operational speed
                                                                                                    (kn) \a\
----------------------------------------------------------------------------------------------------------------
                                 WTG, Met Tower, and OSS Foundation installation
----------------------------------------------------------------------------------------------------------------
Foundation installation....................  Bulk carrier.................                  1                 10
                                             Medium heavy lift vessel.....                  1                 10
                                             Jack-up vessel...............                  1                 10
Bubble curtain support vessel..............  Tugboat......................                  1                 10
Transport barge............................  Barge........................                2-3               3-10
Towing tugboat.............................  Tugboat......................                2-6               3-10
Support vessel.............................  Service Operation Vessel.....                  1                 10
Crew transfer and noise monitoring.........  Crew transfer vessel.........                  1                 29
----------------------------------------------------------------------------------------------------------------
                                                OSS Installation
----------------------------------------------------------------------------------------------------------------
OSS installation...........................  Large heavy lift vessel......                  1                 10
                                             Medium heavy lift vessel.....                  1                 10
Bubble curtain support vessel..............  Tugboat......................                  1                 10
Transport barge............................  Barge........................                  4                 10
Towing tugboat.............................  Tugboat......................                  4                 10
Assistance tugboat.........................  Tugboat......................                  2                 10
Crew transfer and noise monitoring.........  Crew transfer vessel.........                  1                 29
----------------------------------------------------------------------------------------------------------------
                                                Scour protection
----------------------------------------------------------------------------------------------------------------
Scour protection installation..............  Fall pipe vessel.............                  1                 10
Dredging...................................  Dredger......................                  1                 10
----------------------------------------------------------------------------------------------------------------

[[Page 65441]]

 
                                       Cofferdam installation and removal
----------------------------------------------------------------------------------------------------------------
Cofferdam installation and removal.........  Spread-moored barge..........                  1                 10
                                             DP barge.....................                  1                 10
----------------------------------------------------------------------------------------------------------------
\a\ All vessels will follow required proposed vessel strike mitigation measures and any vessel speed
  restrictions required by this proposed rule (i.e., all vessels will travel at 10 kn (11.5 mph) or less in
  Dynamic Management Areas (DMAs) and Seasonal Management Areas (SMAs)).

    Atlantic Shores estimates that up to 37 round trips, monthly, from 
various ports would be necessary associated with the installation of 
the WTG and OSS foundations, topside construction associated with WTGs 
and OSSs, and the necessary scour protection. They further estimate 
that about 19 monthly round trips would be needed from the port in 
Atlantic City, up to 17 would be needed from the New Jersey Wind port, 
and a single monthly round trip would occur from European ports. Where 
a tug and barge combination would be used, a single vessel trip is 
assumed from the joint approach as these two vessels would be used 
conjointly.
    While marine mammals are known to respond to vessel noise and the 
presence of vessels in different ways, we do not expect Atlantic 
Shores' vessel operations to result in the take of marine mammals. As 
existing vessel traffic in the vicinity of the Project Area off of New 
Jersey is relatively high, we expect that marine mammals in the area 
are likely somewhat habituated to vessel noise. As part of various 
construction related activities, including cable laying and 
construction material delivery, dynamic positioning thrusters may be 
utilized to hold vessels in position or move slowly. Sound produced 
through use of dynamic positioning thrusters is similar to that 
produced by transiting vessels, in that dynamic positioning thrusters 
are typically operated either in a similarly predictable manner or used 
for short durations around stationary activities. Sound produced by 
dynamic positioning thrusters would be preceded by, and associated 
with, sound from ongoing vessel noise and would be similar in nature; 
thus, any marine mammals in the vicinity of the activity would be aware 
of the vessel's presence, further reducing the potential for startle or 
flight responses on the part of marine mammals. Accordingly, noise from 
construction-related vessel activity, including the use of dynamic 
positioning thrusters, is not expected to result in take of marine 
mammals. In addition, any construction vessels would be stationary for 
significant periods of time when on-site and any large vessels would 
travel to and from the site at relatively low speeds. Project-related 
vessels would be required to adhere to several mitigation measures 
designed to avoid vessel strikes; these measures are described further 
below (see the Proposed Mitigation section). Vessel strikes are neither 
anticipated nor authorized. Atlantic Shores did not request, and NMFS 
does not propose to authorize, take associated with vessel activity. 
However, NMFS acknowledges the aggregate impacts of Atlantic Shores 
South's vessel operations on the acoustic habitat of marine mammals and 
has considered it in the analysis and preliminary determinations 
contained herein.
Helicopter Usage
    Atlantic Shores may supplement vessel-based transport with 
helicopters to transfer crew to and from the shore and the Lease Area. 
Crew transport via helicopter may be utilized during offshore 
construction, commissioning, and testing phases as well as during 
maintenance of the WTGs (Atlantic Shores, 2021). Helicopters could be 
used when rapid-response operations and maintenance (O&M) activities 
are needed or when poor weather limits the use of crew transport 
vessels. Helicopters would be based within a reasonable distance of the 
project at a general aviation airport (COP Volume 1 section 5.6). The 
most intense helicopter activity would occur during construction phases 
and mostly likely during shift changes. Atlantic Shores does not 
currently anticipate installing helicopter pads on the OSSs, though 
this feature may be added depending on the O&M strategy employed. If a 
helicopter pad is installed, it would be designed to support a U.S. 
Coast Guard helicopter, including appropriate lighting and marking as 
required (COP Volume 1 section 5.5; DEIS section 2).
    In addition, fixed wing aircraft may be used to support 
environmental monitoring and mitigation efforts (Atlantic Shores, 
2021). Aircraft usage would align with the best practices from 
regulators when determining routes and altitudes for travel. 
Helicopters and fixed wing aircraft produce sounds that can be audible 
to marine mammals; however, most sound energy from aircraft reflects 
off the air-water interface as only sound radiated downward within a 
26-degree cone penetrates below the surface water (Urick, 1972).
    Due to the intermittent nature and the small area potentially 
ensonified by this sound source for a very limited duration, Atlantic 
Shores did not request, and NMFS is not proposing to authorize, take of 
marine mammals incidental to helicopter and fixed wing aircraft 
flights; therefore, these activities will not be discussed further in 
this proposed action.
Fisheries and Benthic Monitoring
    Fisheries and benthic monitoring surveys have been designed in 
accordance with recommendations set forth by the Responsible Offshore 
Science Alliance (ROSA) Offshore Wind Project Monitoring Framework and 
Guidelines (https://www.rosascience.org/offshore-wind-and-fisheries-resources/; ROSA, 2021). The purpose of the surveys are to document 
environmental conditions relevant to fisheries in the Project Area 
throughout the construction and operation phases of the proposed 
project. Atlantic Shores would conduct demersal otter trawl surveys, 
ventless trap surveys, and hydraulic clam dredge surveys to enhance 
existing data for specific benthic and pelagic species of concern. The 
demersal otter trawl surveys would follow methodology based upon the 
Northeast Monitoring and Assessment Program (NEAMAP) annual trawl 
surveys, throughout all four seasons to monitor fish and mega-
invertebrate communities. The trawl net would be a four-seam, three 
bridle, 400 centimeter (cm; 157.48 inch (in)) x 12 cm (4.7 in) net with 
a cookie sweep and 1 in (2.54 cm) knotless liner in the cod

[[Page 65442]]

end. The fishing circle would be 400 meshes of 12 cm (4.72 in), 4 
millimeter (mm; 0.157 in) braided polyethylene twine (4,800 cm (1889.76 
in) fishing circle). The total headrope length, including extension 
chains, hammerlocks, shackles, and combination cable would be 24.6 m 
(80.7 ft) long, with extension cables fully slacked out while fishing. 
Sixty 20.3 cm (8 in) orange center-hole floats would run the length of 
the headrope. The upper and lower wing ends would be made of stainless-
steel combination cable and measure 552 cm (217.3 in) and 459 cm (180.7 
in) respectively. The total footrope length including hammerlocks, 
shackles, and extension wires would be approximately 27 m (88.6 ft) 
long. The doors would be Thyboron type IV, 167.64 cm (425.8 in) otter 
trawl doors with 2.25 meters squared (m\2\; 24.2 feet square (ft\2\)) 
area. A Netmind digital trawl net monitoring system would be 
incorporated with sensors measuring wing spread, vertical net opening, 
bottom contact, and a catch sensor in the cod end to trip at 
approximately 5,000 pounds (lbs; 2,268 kilograms (kg)). Prior to 
sampling, salinity, temperature, and dissolved oxygen would be measured 
during a cast to the seafloor with an appropriate oceanographic probe. 
Sampling would only occur between 30 minutes after sunrise and 30 
minutes before sunset. Oceanographic conditions would be recorded at 
each station before beginning trawl. The tow cable would be deployed to 
a length of at least 3 times the water column depth. The tow duration 
would be 20 minutes at a speed of approximately 3 kn (3.45 mph), with 
the towpath being regularly logged. Once onboard, the catch would be 
dumped and sorted by species into buckets and baskets unless the tow is 
deemed a failure. Demersal otter trawl surveys would be conducted 
during preconstruction and construction years as well as for 3 years 
post construction.
    The ventless trap surveys, or fish pot surveys, would follow survey 
design adapted from a Rutgers University and New Jersey Department of 
Environmental Protection (NJDEP) trap survey of artificial reefs 
offshore of New Jersey (Jensen et al., 2018). The purpose of the trap 
surveys would be to monitor the presence and size of dominant 
structure-associated species. Unbaited ventless traps (110.5 cm x 56 cm 
x 38 cm (43.5 in x 22 in x 15 in)) would be deployed in a trawl 
attached to a groundline. Each trap would be affixed with a temperature 
logger and a camera facing outward above the entrance. The groundline 
on each trap would serve to prevent gear loss and protected species 
entanglement. Trap surveys would be conducted during all four seasons 
during preconstruction and construction phases as well as for 3 years 
post construction. Once traps are set, they would soak for two periods 
of 5-7 days, depending upon weather. All gear would be removed from the 
water in between surveys.
    Hydraulic clam dredge surveys would use a dredge similar to the 
NJDEP surf clam survey gear and follow a NMFS Northeast Fisheries 
Science Center (NEFSC) clam dredge survey methodology (Atlantic Shores, 
2023). The purpose of the clam dredge survey would be to detect 
significant changes in the presence and size of ocean quahogs and 
Atlantic surf clams from cumulative project effects. Dredge surveys 
would take place during the summer during preconstruction and 
construction phases as well as for 3 years post construction. More 
information about Atlantic Shores' fishery and benthic monitoring 
surveys can be found in the Atlantic Shores Fisheries Monitoring Plan, 
Appendix II-K found on our website https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores.
    In addition to the above mentioned fishery monitoring surveys, 
Atlantic Shores would also partner with Rutgers University to conduct a 
multi-phase modeling study to gain a better understanding of how Mid-
Atlantic wind farms and climate change may influence the distribution 
and abundance of surf clams (Atlantic Shores, 2023). This study builds 
off an existing simulation of the surf clam fishery in the Mid-Atlantic 
Bight. The simulation, Spatially-explicit Ecological agent-based 
Fisheries and Economic Simulator (SEFES), currently models the 
interactions between surf stock biology, fishery captain and fleet 
behavior, Federal management decisions, fishery economics, port 
structure, and wind farm development. Atlantic Shores will partner with 
Rutgers University to expand the capabilities of SEFES to assess 
fisheries and wind development activities from present day to 30 years 
into the future and run scenarios that factor in the presence of the 
proposed project. Atlantic Shores would also partner with Stockton 
University to study the ecological succession of newly submerged 
artificial reefs off New Jersey through the use of acoustic and video 
observation. Surveys would be conducted using side scan sonar, 
multibeam echosounder, and direct observation via a remotely operated 
vehicle (ROV) to collect data for 3-D mapping of artificial reef 
structures. Maps would provide base layers to overlay biological 
assessments to better understand ecological succession of newly 
submerged reef structures. Atlantic Shores does not anticipate, and 
NMFS is not proposing to authorize, take of marine mammals incidental 
to these activities and they are not discussed further in this 
document.
    In general, trap and trawl surveys have the potential to result in 
the take of marine mammals given there is a risk of entanglement. 
However, Atlantic Shores would implement mitigation and monitoring 
measures to avoid taking marine mammals, including, but not limited to, 
use of bycatch reduction gear such as ropeless gear for trap surveys, 
monitoring for marine mammals before and during trawling activities, 
not deploying or pulling trawl gear in certain circumstances, limiting 
tow times, fully repairing nets, and reporting protected species 
interactions to the NMFS Greater Atlantic Region Field Office (GARFO). 
All trap and trawl surveys would also comply with take reduction team 
regulations for Atlantic large whales, harbor porpoises, and bottlenose 
dolphins, and Atlantic Trawl Take Reduction Strategy measures to reduce 
the potential for interactions between small cetaceans and trawl 
(bottom and mid-water) gear (Atlantic Shores, 2023). A full description 
of mitigation measures can be found in the Proposed Mitigation section.
    With the implementation of these measures, Atlantic Shores does not 
anticipate, and NMFS is not proposing to authorize, take of marine 
mammals incidental to research trap and trawl surveys. Given no take is 
anticipated from these surveys, impacts from fishery surveys will not 
be discussed further in this document (with the exception of the 
description of measures in the Proposed Mitigation section).

Description of Marine Mammals in the Geographic Area of Specified 
Activities

    Thirty-eight marine mammal species under NMFS' jurisdiction have 
geographic ranges within the western North Atlantic OCS (Hayes et al., 
2022). However, for reasons described below, Atlantic Shores has 
requested, and NMFS proposes to authorize, take of only 16 species 
(comprising 17 stocks) of marine mammals. Sections 3 and 4 of Atlantic 
Shores' ITA application summarize available information regarding 
status and trends, distribution and habitat preferences, and behavior 
and life history of the potentially affected species (JASCO, 2022). 
NMFS fully considered all of this information,

[[Page 65443]]

and we refer the reader to these descriptions in the application 
instead of reprinting the information. Additional information regarding 
population trends and threats may be found in NMFS's Stock Assessment 
Reports (SARs), https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), and more general 
information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).
    Of the 38 marine mammal species and/or stocks with geographic 
ranges that include the Project Area (i.e., found in the coastal and 
offshore waters of New Jersey), 22 are not expected to be present or 
are considered rare or unexpected in the Project Area based on sighting 
and distribution data (see Table 11 in Atlantic Shores' ITA 
application); they are, therefore, not discussed further beyond the 
explanation provided here. Specifically, the following cetacean species 
are known to occur off of New Jersey but are not expected to occur in 
the Project Area due to the location of preferred habitat outside the 
Lease Area and ECCs, based on the best available information: Blue 
whale (Balaenoptera musculus), Cuvier's beaked whale (Ziphius 
cavirostris), four species of Mesoplodont beaked whales (Mesoplodon 
densitostris, M. europaeus, M. mirus, and M. bidens), clymene dolphin 
(Stenella clymene), false killer whale (Pseudorca crassidens), Fraser's 
dolphin (Lagenodelphis hosei), killer whale (Orcinus orca), melon-
headed whale (Peponocephala electra), pantropical spotted dolphin 
(Stenella attenuata), pygmy killer whale (Feresa attenuata), rough-
toothed dolphin (Steno bredanensis), spinner dolphin (Stenella 
longirostris), striped dolphin (Stenella coeruleoalba), white-beaked 
dolphin (Lagenorhynchus albirostris), Northern bottlenose whale 
(Hyperoodon ampullatus), dwarf sperm whale (Kogia sima), and the pygmy 
sperm whale (Kogia breviceps). Two species of phocid pinnipeds are also 
uncommon in the Project Area, including: harp seals (Pagophilus 
groenlandica) and hooded seals (Cystophora cristata).
    In addition, the Florida manatees (Trichechus manatus; a sub-
species of the West Indian manatee) has been previously documented as 
an occasional visitor to the Mid-Atlantic region during summer months 
(Morgan et al., 2002; Cummings et al., 2014). However, as manatees are 
managed solely under the jurisdiction of the U.S. Fish and Wildlife 
Service (USFWS), they are not considered or discussed further in this 
document.
    Table 4 lists all species and stocks for which take is expected and 
proposed to be authorized for this action and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. PBR is defined as ``the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population'' (16 U.S.C. 1362(20)). While no 
mortality is anticipated or proposed to be authorized, PBR and annual 
serious injury and mortality from anthropogenic sources are included 
here as gross indicators of the status of the species and other 
threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
Table 4 are the most recent available data at the time of publication, 
which can be found in NMFS' final2022 SARs (Hayes et al., 2023) 
available online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.

                            Table 4--Marine Mammal Species \5\ 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/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             338 (0; 332; 2020)....        0.7        8.1
Family Balaenopteridae (rorquals):
    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             172,897 (0.21;              1,452        390
                                                                                                             145,216; 2016).
    Long-finned pilot whale \6\.....  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3; 30,627;          306         29
                                                                                                             2016).
    Short-finned pilot whale \6\....  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):

[[Page 65444]]

 
    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 \4\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,300 (0.22; 22,785;       1,458      4,453
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS' marine mammal stock assessment reports 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.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, vessel strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,431. The annual M/SI value given is for the total stock.
\5\ 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)).
\6\ Although both species are described here, the requested take for both short-finned and long-finned pilot whales has been summarized into a single
  group (pilot whales spp.).

    As indicated above, all 16 species and 17 stocks in Table 4 
temporally and spatially co-occur with the activity to the degree that 
take is reasonably likely to occur. Four of the marine mammal species 
for which take is requested are listed as threatened or endangered 
under the ESA, including North Atlantic right, fin, sei, and sperm 
whales.
    In addition to what is included in Sections 3 and 4 of Atlantic 
Shores' ITA application (https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores), the SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), and NMFS' website (https://www.fisheries.noaa.gov/species-directory/marine-mammals), we provide further detail below 
informing the baseline for select species (e.g., information regarding 
current UMEs and known important habitat areas, such as Biologically 
Important Areas (BIAs) (Van Parijs, 2015). There are no ESA-designated 
critical habitats for any species within the Project Area (https://www.fisheries.noaa.gov/resource/map/national-esa-critical-habitat-mapper).
    Under the MMPA, a UME is defined as ``a stranding that is 
unexpected; involves a significant die-off of any marine mammal 
population; and demands immediate response'' (16 U.S.C. 1421h(6)). As 
of May 2023, five UMEs are active. Four of these UMEs are occurring 
along the U.S. Atlantic coast for various marine mammal species. Of 
these, the most relevant to the Project Area are the North Atlantic 
right whale, humpback whale, and harbor and gray seal UMEs given the 
prevalence of these species in the Project Area. More information on 
UMEs, including all active, closed, or pending, can be found on NMFS' 
website at https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
    Below, we include information for a subset of the species that 
presently have an active or recently closed UME occurring along the 
Atlantic coast or for which there is information available related to 
areas of biological significance. For the majority of species 
potentially present in the specific geographic region, NMFS has 
designated only a single generic stock (e.g., ``western North 
Atlantic'') for management purposes. This includes the ``Canadian east 
coast'' stock of minke whales, which includes all minke whales found in 
U.S. waters and is also a generic stock for management purposes. For 
humpback and sei whales, NMFS defines stocks on the basis of feeding 
locations (i.e., Gulf of Maine and Nova Scotia, respectively). However, 
references to humpback whales and sei whales in this document refer to 
any individuals of the species that are found in the project area. Any 
areas of known biological importance (including the BIAs identified in 
LaBrecque et al., 2015) that overlap spatially (or are adjacent) with 
the project area are addressed in the species sections below.

North Atlantic Right Whale

    The North Atlantic right whale has been listed as Endangered since 
the ESA's enactment in 1973. The species was recently uplisted from 
Endangered to Critically Endangered on the International Union for 
Conservation of Nature (IUCN) Red List of Threatened Species (Cooke, 
2020). The uplisting was due to a decrease in population size (Pace et 
al., 2017), an increase in vessel strikes and entanglements in fixed 
fishing gear (Daoust et al., 2017; Davis & Brillant, 2019; Knowlton et 
al., 2012; Knowlton et al., 2022; Moore et al., 2021; Sharp et al., 
2019), and a decrease in birth rate (Pettis et al., 2022; Reed et al., 
2022). The Western Atlantic stock is considered depleted under the MMPA 
(Hayes et al., 2022). There is a recovery plan (NMFS, 2005) for the 
North Atlantic right whale, and NMFS completed 5-year reviews of the 
species in 2012, 2017, and 2022 which concluded no change to the 
listing status is warranted.
    Designated by NMFS as a Species in the Spotlight, the North 
Atlantic right whale is considered among the species with the greatest 
risk of extinction in the near future (https://www.fisheries.noaa.gov/topic/endangered-species-conservation/species-in-the-spotlight).
    The North Atlantic right whale population had only a 2.8 percent 
recovery rate between 1990 and 2011 and an overall abundance decline of 
23.5 percent from 2011-2019 (Hayes et al., 2022). Since 2010, the North 
Atlantic right whale population has been in decline (Pace et al., 2017; 
Pace

[[Page 65445]]

et al., 2021), with a 40 percent decrease in calving rate (Kraus et 
al., 2016; Moore et al., 2021). North Atlantic right whale calving 
rates dropped from 2017 to 2020 with zero births recorded during the 
2017-2018 season. The 2020-2021 calving season had the first 
substantial calving increase in 5 years with 20 calves born followed by 
15 calves during the 2021-2022 calving season. However, mortalities 
continue to outpace births, and best estimates indicate fewer than 70 
reproductively active females remain in the population.
    Critical habitat for North Atlantic right whales is not present in 
the project area. However, the project area both spatially and 
temporally overlaps a portion of the migratory corridor BIA within 
which North Atlantic right whales migrate south to calving grounds 
generally in November and December, followed by a northward migration 
into feeding areas north of the Project Area in March and April 
(LaBrecque et al., 2015; Van Parijs et al., 2015). The Project Area 
does not overlap any North Atlantic right whale feeding BIAs.
    NMFS' regulations at 50 CFR 224.105 designated Seasonal Management 
Areas (SMAs) for North Atlantic right whales in 2008 (73 FR 60173, 
October 10, 2008). SMAs were developed to reduce the threat of 
collisions between ships and North Atlantic right whales around their 
migratory route and calving grounds. There is an SMA for the Ports of 
New York/New Jersey near the proposed Project Area; this SMA is 
currently active from November 1 through April 30 of each year and may 
be used by North Atlantic right whales for feeding (although to a 
lesser extent than the area to the north near Nantucket Shoals) and/or 
migrating. As noted above, independent of the action considered here, 
NMFS is proposing changes to the North Atlantic right whale speed rule 
(87 FR 46921, August 1, 2022). Due to the current status of North 
Atlantic right whales and the spatial proximity overlap of the proposed 
project with areas of biological significance, (i.e., a migratory 
corridor, SMA), the potential impacts of the proposed project on North 
Atlantic right whales warrant particular attention.
    North Atlantic right whale presence in the Project Area is 
predominately seasonal. However, year-round occurrence is documented 
(Davis et al., 2017). Abundance is highest in winter with irregular 
occurrence during summer months and similar occurrence rates in spring 
and fall (O'Brien et al., 2022; Quintana-Rizzo et al., 2021; Estabrook 
et al., 2022). North Atlantic right whale distribution can also be 
derived from acoustic data. A review of passive acoustic monitoring 
data from 2004 to 2014 collected throughout the western North Atlantic 
demonstrated nearly continuous year-round North Atlantic right whale 
presence across their entire habitat range with a decrease in summer 
months, including in locations previously thought of as migratory 
corridors, suggesting that not all of the population undergoes a 
consistent annual migration (Davis et al., 2017). Observations of these 
transitions in North Atlantic right whale habitat use, variability in 
seasonal presence in identified core habitats, and utilization of 
habitat outside of previously focused survey effort prompted the 
formation of a NMFS' Expert Working Group, which identified current 
data collection efforts, data gaps, and provided recommendations for 
future survey and research efforts (Oleson et al., 2020). Recent 
research indicates understanding of their movement patterns remains 
incomplete and not all of the population undergoes a consistent annual 
migration (Davis et al., 2017; Gowan et al., 2019; Krzystan et al., 
2018). Non-calving females may remain in the feeding grounds, during 
the winter in the years preceding and following the birth of a calf to 
increase their energy stores (Gowen et al., 2019).
    To describe seasonal trends in North Atlantic right whale presence, 
Estabrook et al. (2022) analyzed North Atlantic right whale acoustic 
detections collected between 2011-2015 during winter (January through 
March), spring (April through June), summer (July through September), 
and autumn (October-December) off Rhode Island and Massachusetts. 
Winter had the highest presence (75 percent array-days, n=193), and 
summer had the lowest presence (10 percent array-days, n=27). Spring 
and autumn were similar, where 45 percent (n=117) and 51 percent 
(n=121) of the array-days had detections, respectively. Across all 
years, detections were consistently lowest in August and September. In 
Massachusetts Bay and Cape Cod Bay, located further north from the 
Atlantic Shores South Project Area, acoustic detections of North 
Atlantic right whales increased in more recent years in both the peak 
season of late winter through early spring and in summer and fall, 
likely reflecting broad-scale regional habitat changes (Charif et al., 
2020). NMFS' Passive Acoustic Cetacean Map (PACM) contains up-to-date 
acoustic data that contributes to our understanding of when and where 
specific whales (including North Atlantic right whales), dolphin, and 
other cetacean species are acoustically detected in the North Atlantic. 
These data augment the findings of the aforementioned literature.
    In late fall (i.e., November), a portion of the North Atlantic 
right whale population (including pregnant females) typically departs 
the feeding grounds in the North Atlantic, moves south along the 
migratory corridor BIA, including through the Project Area, to North 
Atlantic right whale calving grounds off Georgia and Florida. However, 
recent research indicates understanding of their movement patterns 
remains incomplete and not all of the population undergoes a consistent 
annual migration (Davis et al., 2017; Gowan et al., 2019; Krzystan et 
al., 2018). The results of multistate temporary emigration capture-
recapture modeling, based on sighting data collected over the past 22 
years, indicate that non-calving females may remain in the feeding 
grounds, during the winter in the years preceding and following the 
birth of a calf to increase their energy stores (Gowan et al., 2019).
    New Jersey waters are a migratory corridor in the spring and early 
winter for North Atlantic right whales; these waters are not known 
foraging or calving habitat. North Atlantic right whales feed primarily 
on the copepod, Calanus finmarchicus, a species whose availability and 
distribution has changed both spatially and temporally over the last 
decade due to an oceanographic regime shift that has been ultimately 
linked to climate change (Meyer-Gutbrod et al., 2021; Record et al., 
2019; Sorochan et al., 2019). This distribution change in prey 
availability has led to shifts in North Atlantic right whale habitat-
use patterns within the region over the same time period (Davis et al., 
2020; Meyer-Gutbrod et al., 2022; Quintana-Rizzo et al., 2021; O'Brien 
et al., 2022). Since 2010, North Atlantic right whales have reduced 
their use of foraging habitats in the Great South Channel and Bay of 
Fundy while increasing their use of habitat within Cape Cod Bay as well 
as a region south of Martha's Vineyard and Nantucket Islands (Stone et 
al., 2017; Mayo et al., 2018; Ganley et al., 2019; Record et al., 2019; 
Meyer-Gutbrod et al., 2021). While the Project Area is south of 
Martha's Vineyard and Nantucket Island, these foraging habitats are all 
located several hundred kilometers north of the Project Area.
    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

[[Page 65446]]

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

    Humpback whales were listed as endangered under the Endangered 
Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced 
the ESCA, and humpbacks continued to be listed as endangered. On 
September 8, 2016, NMFS divided the species into 14 distinct population 
segments (DPS), removed the species-level listing, and, in its place, 
listed four DPSs as endangered and one DPS as threatened (81 FR 62259, 
September 8, 2016). The remaining nine DPSs were not listed. The West 
Indies DPS, which is not listed under the ESA, is the only DPS of 
humpback whales that is expected to occur in the project area. 
Bettridge et al. (2015) estimated the size of the West Indies DPS 
population at 12,312 (95 percent confidence interval (CI) 8,688-15,954) 
whales in 2004-05, which is consistent with previous population 
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003; 
Smith et al., 1999) and the increasing trend for the West Indies DPS 
(Bettridge et al., 2015).
    Humpback whales are migratory off coastal New Jersey, moving 
seasonally between northern feeding grounds in New England and southern 
calving grounds in the West Indies (Hayes et al., 2022). Although 
sightings of humpback whales used to occur infrequently off New Jersey, 
they are now common along the Mid-Atlantic States during the winter 
when most humpback whales are at the breeding grounds (Swingle et al., 
1993; Barco et al., 2002; Brown et al., 2022). This shift is also 
supported by passive acoustic monitoring data (e.g., Davis et al., 
2020). Recently, Brown et al. (2022) investigated site fidelity, 
population composition and demographics of individual whales in the New 
York Bight apex (which includes New Jersey waters and found that 
although mean occurrence was low (2.5 days), mean occupancy was 37.6 
days, and 31.3 percent of whales returned from 1 year to the next. The 
majority of whales were seen during summer (July to September, 62.5 
percent), followed by autumn (October to December, 23.5 percent) and 
spring (April to June, 13.9 percent). When data were available to 
evaluate age, most individuals were either confirmed or suspected 
juveniles, including 4 whales known to be 2 to 4 years old based on 
known birth year, and 13 whales with sighting histories of 2 years or 
less on primary feeding grounds. Three individuals were considered 
adults based on North Atlantic sighting records. The young age 
structure in the nearshore waters of the New York Bight apex is 
consistent with other literature (Stepanuk et al., 2021; Swingle et 
al., 1993; Barco et al., 2002). It remains to be determined whether 
humpback whales in the New York Bight apex represent a northern 
expansion of individuals that had wintered off Virginia, a southern 
expansion of individuals from the adjacent Gulf of Maine, or is the 
result of another phenomenon.
    In addition to a migratory pathway, the mid-Atlantic region also 
represents a supplemental winter feeding ground for juveniles and 
mature whales (Barco et al., 2002). Records of humpback whales off the 
U.S. mid-Atlantic coast (New Jersey south to North Carolina) suggest 
that these waters are used as a winter feeding ground from December 
through March (Mallette et al., 2017; Barco et al., 2002; LaBrecque et 
al., 2015) and represent important habitat for juveniles, in particular 
(Swingle et al., 1993; Wiley et al., 1995). Humpback whales have been 
observed feeding off the coast of New Jersey (Swingle et al., 1993; 
Geo-Marine, Inc., 2010; Whitt et al., 2015). A sighting of a cow-calf 
pair seen north of the study area boundary supports the theory that the 
nearshore waters off of New Jersey may provide important feeding and 
nursery habitats for humpback whales (Geo-Marine, 2010). In addition, 
recent research by King et al. (2021) has demonstrated a higher 
occurrence and foraging use of the New York Bight area by humpback 
whales than previously known. According to Roberts et al. (2023) 
density models, the highest density of humpback whales in the vicinity 
of the proposed Project Area is expected to occur during the month of 
April (0.25-0.40 individuals/100 km\2\).
    The Project Area does not overlap any ESA-designated critical 
habitat, BIAs, or other important areas for the humpback whales. A 
humpback whale feeding BIA extends throughout the Gulf of Maine, 
Stellwagen Bank, and Great South Channel from May through December, 
annually (LaBrecque et al., 2015). However, this BIA is located further 
north of, and thus does not overlap, the Project Area.
    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

[[Page 65447]]

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

    Minke whales are common and widely distributed throughout the U.S. 
Atlantic Exclusive Economic Zone (EEZ) (CETAP, 1982; Hayes et al., 
2022), although their distribution has a strong seasonal component. 
Individuals have often been detected acoustically in shelf waters from 
spring to fall and more often detected in deeper offshore waters from 
winter to spring (Risch et al., 2013). Minke whales are abundant in New 
England waters from May through September (Pittman et al., 2006; Waring 
et al., 2014), yet largely absent from these areas during the winter, 
suggesting the possible existence of a migratory corridor (LaBrecque et 
al., 2015). A migratory route for minke whales transiting between 
northern feeding grounds and southern breeding areas may exist to the 
north and east of the proposed Project Area as minke whales may track 
warmer waters along the continental shelf while migrating (Risch et 
al., 2014). Overall, minke whale use of the Project Area is likely 
highest during winter and spring months when foundation installation 
would not be occurring. Density data from Roberts et al. (2023) confirm 
that the highest average density of minke whales in the vicinity of the 
Project Area occurs in April (0.63-1.00 individuals/100 km\2\). 
Construction is planned for May through December.
    There are two minke whale feeding BIAs identified in the southern 
and southwestern section of the Gulf of Maine, including Georges Bank, 
the Great South Channel, Cape Cod Bay and Massachusetts Bay, Stellwagen 
Bank, Cape Anne, and Jeffreys Ledge from March through November, 
annually (LeBrecque et al., 2015). However, these BIAs do not overlap 
the Project Area as they are located approximately 378.7 km (235.3 mi) 
away. No mating or calving grounds have been identified along the U.S. 
Atlantic coast (LaBrecque et al., 2015).
    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.

Marine Mammal Hearing

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

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

[[Page 65448]]

 
High-frequency (HF) cetaceans (true         275 Hz to 160 kHz.
 porpoises,Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger
 & L. australis).
Phocid pinnipeds (PW) (underwater) (true    50 Hz to 86 kHz.
 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

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks. General background information on marine mammal hearing was 
provided previously (see the Description of Marine Mammals in the Area 
of the Specified Activities section). Here, the potential effects of 
sound on marine mammals are discussed.
    Atlantic Shores has requested, and NMFS proposes to authorize, the 
take of marine mammals incidental to the construction activities 
associated with the Project Area. In their application and Application 
Update Report, Atlantic Shores presented their analyses of potential 
impacts to marine mammals from the acoustic sources. NMFS both 
carefully reviewed the information provided by Atlantic Shores, as well 
as independently reviewed applicable scientific research and literature 
and other information to evaluate the potential effects of the 
project's activities on marine mammals.
    The proposed activities would result in the construction and 
placement of up to 205 permanent foundations to support 200 WTGs, 4 
large OSSs, and a single Met Tower. There are a variety of types and 
degrees of effects to marine mammals, prey species, and habitat that 
could occur as a result of the project. Below we provide a brief 
description of the types of sound sources that would be generated by 
the project, the general impacts from these types of activities, and an 
analysis of the anticipated impacts on marine mammals from the project, 
with consideration of the proposed mitigation measures.

Description of Sound Sources

    This section contains a brief technical background on sound, on the 
characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to a discussion of the potential effects of the specified 
activity on marine mammals found later in this document. For general 
information on sound and its interaction with the marine environment, 
please see Au and Hastings (2008); Richardson et al. (1995); Urick 
(1983) as well as the Discovery of Sound in the Sea (DOSITS) website at 
https://dosits.org/. Sound is a vibration that travels as an acoustic 
wave through a medium such as a gas, liquid or solid. Sound waves 
alternately compress and decompress the medium as the wave travels. 
These compressions and decompressions are detected as changes in 
pressure by aquatic life and man-made sound receptors such as 
hydrophones (underwater microphones). In water, sound waves radiate in 
a manner similar to ripples on the surface of a pond and may be either 
directed in a beam (narrow beam or directional sources) or sound beams 
may radiate in all directions (omnidirectional sources).
    Sound travels in water more efficiently than almost any other form 
of energy, making the use of acoustics ideal for the aquatic 
environment and its inhabitants. In seawater, sound travels at roughly 
1,500 meters per second (m/s). In-air, sound waves travel much more 
slowly, at about 340 m/s. However, the speed of sound can vary by a 
small amount based on characteristics of the transmission medium, such 
as water temperature and salinity. The basic components of a sound wave 
are frequency, wavelength, velocity, and amplitude. Frequency is the 
number of pressure waves that pass by a reference point per unit of 
time and is measured in Hz or cycles per second. Wavelength is the 
distance between two peaks or corresponding points of a sound wave 
(length of one cycle). Higher frequency sounds have shorter wavelengths 
than lower frequency sounds, and typically attenuate (decrease) more 
rapidly, except in certain cases in shallower water.
    The intensity (or amplitude) of sounds are measured in dB, which 
are a relative unit of measurement that is used to express the ratio of 
one value of a power or field to another. Decibels are measured on a 
logarithmic scale, so a small change in dB corresponds to large changes 
in sound pressure. For example, a 10-dB increase is a 10-fold increase 
in acoustic power. A 20-dB increase is then a 100-fold increase in 
power and a 30-dB increase is a 1,000-fold increase in power. However, 
a ten-fold increase in acoustic power does not mean that the sound is 
perceived as being 10 times louder. Decibels are a relative unit 
comparing two pressures, therefore, a reference pressure must

[[Page 65449]]

always be indicated. For underwater sound, this is 1 microPascal 
([mu]Pa). For in-air sound, the reference pressure is 20 [mu]Pa. The 
amplitude of a sound can be presented in various ways. However, NMFS 
typically considers three metrics. In this proposed rule, all decibel 
levels referenced to 1[mu]Pa.
    Sound exposure level (SEL) represents the total energy in a stated 
frequency band over a stated time interval or event, and considers both 
amplitude and duration of exposure (represented as dB re 1 [mu]Pa\2\-
s). SEL is a cumulative metric; it can be accumulated over a single 
pulse (for pile driving this is often referred to as single-strike SEL; 
SELss), or calculated over periods containing multiple 
pulses (SELcum). Cumulative SEL represents the total energy 
accumulated by a receiver over a defined time window or during an 
event. The SEL metric is useful because it allows sound exposures of 
different durations to be related to one another in terms of total 
acoustic energy. The duration of a sound event and the number of 
pulses, however, should be specified as there is no accepted standard 
duration over which the summation of energy is measured.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.
    Peak sound pressure (also referred to as zero-to-peak sound 
pressure or 0-pk) is the maximum instantaneous sound pressure 
measurable in the water at a specified distance from the source, and is 
represented in the same units as the rms sound pressure. Along with 
SEL, this metric is used in evaluating the potential for PTS (permanent 
threshold shift) and TTS (temporary threshold shift).
    Sounds can be either impulsive or non-impulsive. The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see NMFS et 
al. (2018) and Southall et al. (2007, 2019a) for an in-depth discussion 
of these concepts. Impulsive sound sources (e.g., airguns, explosions, 
gunshots, sonic booms, impact pile driving) produce signals that are 
brief (typically considered to be less than 1 second), broadband, 
atonal transients (American National Standards Institute (ANSI), 1986, 
2005; Harris, 1998; National Institute for Occupational Safety and 
Health (NIOSH), 1998; International Organization for Standardization 
(ISO), 2003) and occur either as isolated events or repeated in some 
succession. Impulsive sounds are all characterized by a relatively 
rapid rise from ambient pressure to a maximal pressure value followed 
by a rapid decay period that may include a period of diminishing, 
oscillating maximal and minimal pressures, and generally have an 
increased capacity to induce physical injury as compared with sounds 
that lack these features. Impulsive sounds are typically intermittent 
in nature.
    Non-impulsive sounds can be tonal, narrowband, or broadband, brief 
or prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-impulsive sounds can be transient 
signals of short duration but without the essential properties of 
pulses (e.g., rapid rise time). Examples of non-impulsive sounds 
include those produced by vessels, aircraft, machinery operations such 
as drilling or dredging, vibratory pile driving, and active sonar 
systems. Sounds are also characterized by their temporal component. 
Continuous sounds are those whose sound pressure level remains above 
that of the ambient sound with negligibly small fluctuations in level 
(NIOSH, 1998; ANSI, 2005) while intermittent sounds are defined as 
sounds with interrupted levels of low or no sound (NIOSH, 1998). NMFS 
identifies Level B harassment thresholds based on whether a sound is 
continuous or intermittent.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (International Council for the Exploration of the Sea 
(ICES), 1995). In general, ambient sound levels tend to increase with 
increasing wind speed and wave height. Precipitation can become an 
important component of total sound at frequencies above 500 Hz and 
possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 1 
kHz, and if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but also on the ability of 
sound to propagate through the environment. In turn, sound propagation 
is dependent on the spatially and temporally varying properties of the 
water column and sea floor, and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a given frequency and location can 
vary by 10-20 dB from day to day (Richardson et al., 1995). The result 
is that, depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals. Human-generated sound is a significant contributor to the 
acoustic environment in the project location.

Potential Effects of Underwater Sound on Marine Mammals

    Anthropogenic sounds cover a broad range of frequencies and sound 
levels and can have a range of highly variable impacts on marine life 
from none or minor to potentially severe responses depending on 
received levels, duration of exposure, behavioral context, and various 
other factors. Broadly, underwater sound from active acoustic sources, 
such as those in the project, can

[[Page 65450]]

potentially result in one or more of the following: temporary or 
permanent hearing impairment, non-auditory physical or physiological 
effects, behavioral disturbance, stress, and masking (Richardson et 
al., 1995; Gordon et al., 2003; Nowacek et al., 2007; Southall et al., 
2007; G[ouml]tz et al., 2009). Non-auditory physiological effects or 
injuries that theoretically might occur in marine mammals exposed to 
high level underwater sound or as a secondary effect of extreme 
behavioral reactions (e.g., change in dive profile as a result of an 
avoidance reaction) caused by exposure to sound include neurological 
effects, bubble formation, resonance effects, and other types of organ 
or tissue damage (Cox et al., 2006; Southall et al., 2007; Zimmer and 
Tyack, 2007; Tal et al., 2015).
    In general, the degree of effect of an acoustic exposure is 
intrinsically related to the signal characteristics, received level, 
distance from the source, and duration of the sound exposure, in 
addition to the contextual factors of the receiver (e.g., behavioral 
state at time of exposure, age class, etc.). In general, sudden, high 
level sounds can cause hearing loss as can longer exposures to lower 
level sounds. Moreover, any temporary or permanent loss of hearing will 
occur almost exclusively for noise within an animal's hearing range. We 
describe below the specific manifestations of acoustic effects that may 
occur based on the activities proposed by Atlantic Shores.
    Richardson et al. (1995) described zones of increasing intensity of 
effect that might be expected to occur in relation to distance from a 
source and assuming that the signal is within an animal's hearing 
range. First (at the greatest distance) is the area within which the 
acoustic signal would be audible (potentially perceived) to the animal 
but not strong enough to elicit any overt behavioral or physiological 
response. The next zone (closer to the receiving animal) corresponds 
with the area where the signal is audible to the animal and of 
sufficient intensity to elicit behavioral or physiological 
responsiveness. The third is a zone within which, for signals of high 
intensity, the received level is sufficient to potentially cause 
discomfort or tissue damage to auditory or other systems. Overlaying 
these zones to a certain extent is the area within which masking (i.e., 
when a sound interferes with or masks the ability of an animal to 
detect a signal of interest that is above the absolute hearing 
threshold) may occur; the masking zone may be highly variable in size.
    Below, we provide additional detail regarding potential impacts on 
marine mammals and their habitat from noise in general, starting with 
hearing impairment, as well as from the specific activities Atlantic 
Shores plans to conduct, to the degree it is available (noting that 
there is limited information regarding the impacts of offshore wind 
construction on marine mammals).
Hearing Threshold Shift
    Marine mammals exposed to high-intensity sound or to lower-
intensity sound for prolonged periods can experience hearing threshold 
shift (TS), which NMFS defines as a change, usually an increase, in the 
threshold of audibility at a specified frequency or portion of an 
individual's hearing range above a previously established reference 
level expressed in decibels (NMFS, 2018). Threshold shifts can be 
permanent, in which case there is an irreversible increase in the 
threshold of audibility at a specified frequency or portion of an 
individual's hearing range or temporary, in which there is reversible 
increase in the threshold of audibility at a specified frequency or 
portion of an individual's hearing range and the animal's hearing 
threshold would fully recover over time (Southall et al., 2019a). 
Repeated sound exposure that leads to TTS could cause PTS.
    When PTS occurs, there can be physical damage to the sound 
receptors in the ear (i.e., tissue damage) whereas TTS represents 
primarily tissue fatigue and is reversible (Henderson et al., 2008). In 
addition, other investigators have suggested that TTS is within the 
normal bounds of physiological variability and tolerance and does not 
represent physical injury (e.g., Ward, 1997; Southall et al., 2019a). 
Therefore, NMFS does not consider TTS to constitute auditory injury.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals, and there is no PTS data for cetaceans. However, 
such relationships are assumed to be similar to those in humans and 
other terrestrial mammals. Noise exposure can result in either a 
permanent shift in hearing thresholds from baseline (PTS; a 40 dB 
threshold shift approximates a PTS onset; e.g., Kryter et al., 1966; 
Miller, 1974; Henderson et al., 2008) or a temporary, recoverable shift 
in hearing that returns to baseline (a 6 dB threshold shift 
approximates a TTS onset; e.g., Southall et al., 2019a). Based on data 
from terrestrial mammals, a precautionary assumption is that the PTS 
thresholds, expressed in the unweighted peak sound pressure level 
metric (PK), for impulsive sounds (such as impact pile driving pulses) 
are at least 6 dB higher than the TTS thresholds and the weighted PTS 
cumulative sound exposure level thresholds are 15 (impulsive sounds) to 
20 (non-impulsive sounds) dB higher than TTS cumulative sound exposure 
level thresholds (Southall et al., 2019a). Given the higher level of 
sound or longer exposure duration necessary to cause PTS as compared 
with TTS, PTS is less likely to occur as a result of these activities, 
but it is possible and a small amount has been proposed for 
authorization for several species.
    TTS is the mildest form of hearing impairment that can occur during 
exposure to sound, with a TTS of 6 dB considered the minimum threshold 
shift clearly larger than any day-to-day or session-to-session 
variation in a subject's normal hearing ability (Schlundt et al., 2000; 
Finneran et al., 2000; Finneran et al., 2002). While experiencing TTS, 
the hearing threshold rises, and a sound must be at a higher level in 
order to be heard. In terrestrial and marine mammals, TTS can last from 
minutes or hours to days (in cases of strong TTS). In many cases, 
hearing sensitivity recovers rapidly after exposure to the sound ends. 
There is data on sound levels and durations necessary to elicit mild 
TTS for marine mammals, but recovery is complicated to predict and 
dependent on multiple factors.
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
depending on the degree of interference with marine mammals' hearing. 
For example, a marine mammal may be able to readily compensate for a 
brief, relatively small amount of TTS in a non-critical frequency range 
that occurs during a time where ambient noise is lower and there are 
not as many competing sounds present. Alternatively, a larger amount 
and longer duration of TTS sustained during time when communication is 
critical (e.g., for successful mother/calf interactions, consistent 
detection of prey) could have more serious impacts.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor 
porpoise, and Yangtze finless porpoise (Neophocaena asiaeorientalis)) 
and six species of

[[Page 65451]]

pinnipeds (northern elephant seal (Mirounga angustirostris), harbor 
seal, ring seal, spotted seal, bearded seal, and California sea lion 
(Zalophus californianus)) that were exposed to a limited number of 
sound sources (i.e., mostly tones and octave-band noise with limited 
numbers of exposure to impulsive sources such as seismic airguns or 
impact pile driving) in laboratory settings (Southall et al., 2019a). 
There is currently no data available on noise-induced hearing loss for 
mysticetes. For summaries of data on TTS or PTS in marine mammals or 
for further discussion of TTS or PTS onset thresholds, please see 
Southall et al. (2019a) and NMFS (2018).
    Recent studies with captive odontocete species (bottlenose dolphin, 
harbor porpoise, beluga, and false killer whale) have observed 
increases in hearing threshold levels when individuals received a 
warning sound prior to exposure to a relatively loud sound (Nachtigall 
and Supin, 2013, 2015; Nachtigall et al., 2016a, 2016b, 2016c; 
Finneran, 2018; Nachtigall et al., 2018). These studies suggest that 
captive animals have a mechanism to reduce hearing sensitivity prior to 
impending loud sounds. Hearing change was observed to be frequency 
dependent and Finneran (2018) suggests hearing attenuation occurs 
within the cochlea or auditory nerve. Based on these observations on 
captive odontocetes, the authors suggest that wild animals may have a 
mechanism to self-mitigate the impacts of noise exposure by dampening 
their hearing during prolonged exposures of loud sound or if 
conditioned to anticipate intense sounds (Finneran, 2018; Nachtigall et 
al., 2018).
Behavioral Effects
    Exposure of marine mammals to sound sources can result in, but is 
not limited to, no response or any of the following observable 
responses: increased alertness; orientation or attraction to a sound 
source; vocal modifications; cessation of feeding; cessation of social 
interaction; alteration of movement or diving behavior; habitat 
abandonment (temporary or permanent); and in severe cases, panic, 
flight, stampede, or stranding, potentially resulting in death 
(Southall et al., 2007). A review of marine mammal responses to 
anthropogenic sound was first conducted by Richardson (1995). More 
recent reviews address studies conducted since 1995 and focused on 
observations where the received sound level of the exposed marine 
mammal(s) was known or could be estimated (Nowacek et al., 2007; 
DeRuiter et al., 2012 and 2013; Ellison et al., 2012; Gomez et al., 
2016). Gomez et al. (2016) conducted a review of the literature 
considering the contextual information of exposure in addition to 
received level and found that higher received levels were not always 
associated with more severe behavioral responses and vice versa. 
Southall et al. (2021) states that results demonstrate that some 
individuals of different species display clear yet varied responses, 
some of which have negative implications while others appear to 
tolerate high levels and that responses may not be fully predictable 
with simple acoustic exposure metrics (e.g., received sound level). 
Rather, the authors state that differences among species and 
individuals along with contextual aspects of exposure (e.g., behavioral 
state) appear to affect response probability.
    Behavioral responses to sound are highly variable and context-
specific. Many different variables can influence an animal's perception 
of and response to (nature and magnitude) an acoustic event. An 
animal's prior experience with a sound or sound source affects whether 
it is less likely (habituation) or more likely (sensitization) to 
respond to certain sounds in the future (animals can also be innately 
predisposed to respond to certain sounds in certain ways) (Southall et 
al., 2019a). Related to the sound itself, the perceived nearness of the 
sound, bearing of the sound (approaching vs. retreating), the 
similarity of a sound to biologically relevant sounds in the animal's 
environment (i.e., calls of predators, prey, or conspecifics), and 
familiarity of the sound may affect the way an animal responds to the 
sound (Southall et al., 2007, DeRuiter et al., 2013). Individuals (of 
different age, gender, reproductive status, etc.) among most 
populations will have variable hearing capabilities, and differing 
behavioral sensitivities to sounds that will be affected by prior 
conditioning, experience, and current activities of those individuals. 
Often, specific acoustic features of the sound and contextual variables 
(i.e., proximity, duration, or recurrence of the sound or the current 
behavior that the marine mammal is engaged in or its prior experience), 
as well as entirely separate factors, such as the physical presence of 
a nearby vessel, may be more relevant to the animal's response than the 
received level alone.
    Overall, the variability of responses to acoustic stimuli depends 
on the species receiving the sound, the sound source, and the social, 
behavioral, or environmental contexts of exposure (e.g., DeRuiter et 
al., 2012). For example, Goldbogen et al. (2013a) demonstrated that 
individual behavioral state was critically important in determining 
response of blue whales to sonar, noting that some individuals engaged 
in deep (greater than 50 m) feeding behavior had greater dive responses 
than those in shallow feeding or non-feeding conditions. Some blue 
whales in the Goldbogen et al. (2013a) study that were engaged in 
shallow feeding behavior demonstrated no clear changes in diving or 
movement even when received levels were high (~160 dB re 1[micro]Pa) 
for exposures to 3-4 kHz sonar signals, while deep feeding and non-
feeding whales showed a clear response at exposures at lower received 
levels of sonar and pseudorandom noise. Southall et al. (2011) found 
that blue whales had a different response to sonar exposure depending 
on behavioral state, more pronounced when deep feeding/travel modes 
than when engaged in surface feeding.
    With respect to distance influencing disturbance, DeRuiter et al. 
(2013) examined behavioral responses of Cuvier's beaked whales to mid-
frequency sonar and found that whales responded strongly at low 
received levels (89-127 dB re 1[micro]Pa) by ceasing normal fluking and 
echolocation, swimming rapidly away, and extending both dive duration 
and subsequent non-foraging intervals when the sound source was 3.4-9.5 
km away. Importantly, this study also showed that whales exposed to a 
similar range of received levels (78-106 dB re 1[micro]Pa) from distant 
sonar exercises (118 km away) did not elicit such responses, suggesting 
that context may moderate reactions. Thus, distance from the source is 
an important variable in influencing the type and degree of behavioral 
response and this variable is independent of the effect of received 
levels (e.g., DeRuiter et al., 2013; Dunlop et al., 2017a, 2017b; 
Falcone et al., 2017; Dunlop et al., 2018; Southall et al., 2019a).
    Ellison et al. (2012) outlined an approach to assessing the effects 
of sound on marine mammals that incorporates contextual-based factors. 
The authors recommend considering not just the received level of sound 
but also the activity the animal is engaged in at the time the sound is 
received, the nature and novelty of the sound (i.e., is this a new 
sound from the animal's perspective), and the distance between the 
sound source and the animal. They submit that this ``exposure 
context,'' as described, greatly influences the type of behavioral 
response exhibited by the animal. Forney et al. (2017) also point out 
that an apparent lack of response

[[Page 65452]]

(e.g., no displacement or avoidance of a sound source) may not 
necessarily mean there is no cost to the individual or population, as 
some resources or habitats may be of such high value that animals may 
choose to stay, even when experiencing stress or hearing loss. Forney 
et al. (2017) recommend considering both the costs of remaining in an 
area of noise exposure such as TTS, PTS, or masking, which could lead 
to an increased risk of predation or other threats or a decreased 
capability to forage, and the costs of displacement, including 
potential increased risk of vessel strike, increased risks of predation 
or competition for resources, or decreased habitat suitable for 
foraging, resting, or socializing. This sort of contextual information 
is challenging to predict with accuracy for ongoing activities that 
occur over large spatial and temporal expanses. However, distance is 
one contextual factor for which data exist to quantitatively inform a 
take estimate, and the method for predicting Level B harassment in this 
rule does consider distance to the source. Other factors are often 
considered qualitatively in the analysis of the likely consequences of 
sound exposure where supporting information is available.
    Behavioral change, such as disturbance manifesting in lost foraging 
time, in response to anthropogenic activities is often assumed to 
indicate a biologically significant effect on a population of concern. 
However, individuals may be able to compensate for some types and 
degrees of shifts in behavior, preserving their health and thus their 
vital rates and population dynamics. For example, New et al. (2013) 
developed a model simulating the complex social, spatial, behavioral 
and motivational interactions of coastal bottlenose dolphins in the 
Moray Firth, Scotland, to assess the biological significance of 
increased rate of behavioral disruptions caused by vessel traffic. 
Despite a modeled scenario in which vessel traffic increased from 70 to 
470 vessels a year (a 6-fold increase in vessel traffic) in response to 
the construction of a proposed offshore renewables' facility, the 
dolphins' behavioral time budget, spatial distribution, motivations and 
social structure remained unchanged. Similarly, two bottlenose dolphin 
populations in Australia were also modeled over 5 years against a 
number of disturbances (Reed et al., 2020) and results indicate that 
habitat/noise disturbance had little overall impact on population 
abundances in either location, even in the most extreme impact 
scenarios modeled.
    Friedlaender et al. (2016) provided the first integration of direct 
measures of prey distribution and density variables incorporated into 
across-individual analyses of behavior responses of blue whales to 
sonar and demonstrated a fivefold increase in the ability to quantify 
variability in blue whale diving behavior. These results illustrate 
that responses evaluated without such measurements for foraging animals 
may be misleading, which again illustrates the context-dependent nature 
of the probability of response.
    The following subsections provide examples of behavioral responses 
that give an idea of the variability in behavioral responses that would 
be expected given the differential sensitivities of marine mammal 
species to sound, contextual factors, and the wide range of potential 
acoustic sources to which a marine mammal may be exposed. Behavioral 
responses that could occur for a given sound exposure should be 
determined from the literature that is available for each species, or 
extrapolated from closely related species when no information exists, 
along with contextual factors.
Avoidance and Displacement
    Avoidance is the displacement of an individual from an area or 
migration path as a result of the presence of a sound or other 
stressors and is one of the most obvious manifestations of disturbance 
in marine mammals (Richardson et al., 1995). For example, gray whales 
(Eschrichtius robustus) and humpback whales are known to change 
direction--deflecting from customary migratory paths--in order to avoid 
noise from airgun surveys (Malme et al., 1984; Dunlop et al., 2018). 
Avoidance is qualitatively different from the flight response but also 
differs in the magnitude of the response (i.e., directed movement, rate 
of travel, etc.). Avoidance may be short-term with animals returning to 
the area once the noise has ceased (e.g., Malme et al., 1984; Bowles et 
al., 1994; Goold, 1996; Stone et al., 2000; Morton and Symonds, 2002; 
Gailey et al., 2007; D[auml]hne et al., 2013; Russel et al., 2016). 
Longer-term displacement is possible, however, which may lead to 
changes in abundance or distribution patterns of the affected species 
in the affected region if habituation to the presence of the sound does 
not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann 
et al., 2006; Forney et al., 2017). Avoidance of marine mammals during 
the construction of offshore wind facilities (specifically, impact pile 
driving) has been documented in the literature with some significant 
variation in the temporal and spatial degree of avoidance and with most 
studies focused on harbor porpoises as one of the most common marine 
mammals in European waters (e.g., Tougaard et al., 2009; D[auml]hne et 
al., 2013; Thompson et al., 2013; Russell et al., 2016; Brandt et al., 
2018).
    Available information on impacts to marine mammals from pile 
driving associated with offshore wind is limited to information on 
harbor porpoises and seals, as the vast majority of this research has 
occurred at European offshore wind projects where large whales and 
other odontocete species are uncommon. Harbor porpoises and harbor 
seals are considered to be behaviorally sensitive species (e.g., 
Southall et al., 2007) and the effects of wind farm construction in 
Europe on these species has been well documented. These species have 
received particular attention in European waters due to their abundance 
in the North Sea (Hammond et al., 2002; Nachtsheim et al., 2021). A 
summary of the literature on documented effects of wind farm 
construction on harbor porpoise and harbor seals is described below.
    Brandt et al. (2016) summarized the effects of the construction of 
eight offshore wind projects within the German North Sea (i.e., Alpha 
Ventus, BARD Offshore I, Borkum West II, DanTysk, Global Tech I, 
Meerwind S[uuml]d/Ost, Nordsee Ost, and Riffgat) between 2009 and 2013 
on harbor porpoises, combining PAM data from 2010-2013 and aerial 
surveys from 2009-2013 with data on noise levels associated with pile 
driving. Results of the analysis revealed significant declines in 
porpoise detections during pile driving when compared to 25-48 hours 
before pile driving began, with the magnitude of decline during pile 
driving clearly decreasing with increasing distances to the 
construction site. During the majority of projects, significant 
declines in detections (by at least 20 percent) were found within at 
least 5-10 km of the pile driving site, with declines at up to 20-30 km 
of the pile driving site documented in some cases. Similar results 
demonstrating the long-distance displacement of harbor porpoises (18--
25 km) and harbor seals (up to 40 km) during impact pile driving have 
also been observed during the construction at multiple other European 
wind farms (Tougaard et al., 2009; Bailey et al., 2010; D[auml]hne et 
al., 2013; Lucke et al., 2012; Haelters et al., 2015).
    While harbor porpoises and seals tend to move several kilometers 
away from

[[Page 65453]]

wind farm construction activities, the duration of displacement has 
been documented to be relatively temporary. In two studies at Horns Rev 
II using impact pile driving, harbor porpoise returned within 1-2 days 
following cessation of pile driving (Tougaard et al., 2009; Brandt et 
al., 2011). Similar recovery periods have been noted for harbor seals 
off England during the construction of four wind farms (Brasseur et 
al., 2012; Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 
2015; Russell et al., 2016). In some cases, an increase in harbor 
porpoise activity has been documented inside wind farm areas following 
construction (e.g., Lindeboom et al., 2011). Other studies have noted 
longer term impacts after impact pile driving. Near Dogger Bank in 
Germany, harbor porpoises continued to avoid the area for over 2 years 
after construction began (Gilles et al., 2009). Approximately 10 years 
after construction of the Nysted wind farm, harbor porpoise abundance 
had not recovered to the original levels previously seen, although the 
echolocation activity was noted to have been increasing when compared 
to the previous monitoring period (Teilmann and Carstensen, 2012). 
However, overall, there are no indications for a population decline of 
harbor porpoises in European waters (e.g., Brandt et al., 2016). 
Notably, where significant differences in displacement and return rates 
have been identified for these species, the occurrence of secondary 
project-specific influences such as use of mitigation measures (e.g., 
bubble curtains, acoustic deterrent devices (ADDs)) or the manner in 
which species use the habitat in the Project Area are likely the 
driving factors of this variation.
    NMFS notes the aforementioned studies from Europe involve 
installing much smaller piles than Atlantic Shores proposes to install 
and, therefore, we anticipate noise levels from impact pile driving to 
be louder. For this reason, we anticipate that greater distances of 
displacement than those observed in harbor porpoise and harbor seals in 
Europe are likely to occur off New Jersey. However, we do not 
anticipate any greater severity of response due to harbor porpoise and 
harbor seal habitat use off New Jersey or population-level consequences 
similar to European findings. In many cases, harbor porpoises and 
harbor seals are resident to the areas where European wind farms have 
been constructed. However, off New Jersey, harbor porpoises are 
primarily transient (with higher abundances in winter when foundation 
installation would not occur) and a very small percentage of the large 
harbor seal population are only seasonally present with no rookeries 
established. In summary, we anticipate that harbor porpoise and harbor 
seals will likely respond to pile driving by moving several kilometers 
away from the source but return to typical habitat use patterns when 
pile driving ceases.
    Some avoidance behavior of other marine mammal species has been 
documented to be dependent on distance from the source. As described 
above, DeRuiter et al. (2013) noted that distance from a sound source 
may moderate marine mammal reactions in their study of Cuvier's beaked 
whales (an acoustically sensitive species), which showed the whales 
swimming rapidly and silently away when a sonar signal was 3.4-9.5 km 
away while showing no such reaction to the same signal when the signal 
was 118 km away even though the received levels were similar. Tyack et 
al. (1983) conducted playback studies of Surveillance Towed Array 
Sensor System (SURTASS) low frequency active (LFA) sonar in a gray 
whale migratory corridor off California. Similar to North Atlantic 
right whales, gray whales migrate close to shore (approximately +2 kms) 
and are low frequency hearing specialists. The LFA sonar source was 
placed within the gray whale migratory corridor (approximately 2 km 
offshore) and offshore of most, but not all, migrating whales 
(approximately 4 km offshore). These locations influenced received 
levels and distance to the source. For the inshore playbacks, not 
unexpectedly, the louder the source level of the playback (i.e., the 
louder the received level), the more whales avoided the source at 
greater distances. Specifically, when the source level was 170 dB rms 
and 178 dB rms, whales avoided the inshore source at ranges of several 
hundred meters, similar to avoidance responses reported by Malme et al. 
(1983, 1984). Whales exposed to source levels of 185 dB rms 
demonstrated avoidance levels at ranges of +1 km. Where the offshore 
source broadcast at source levels of 185 and 200 dB, avoidance 
responses were greatly reduced. While there was observed deflection 
from course, in no case did a whale abandon its migratory behavior.
    The signal context of the noise exposure has been shown to play an 
important role in avoidance responses. In a 2007-2008 Bahamas study, 
playback sounds of a potential predator--a killer whale--resulted in a 
similar but more pronounced reaction in beaked whales (an acoustically 
sensitive species), which included longer inter-dive intervals and a 
sustained straight-line departure of more than 20 km from the area 
(Boyd et al., 2008; Southall et al., 2009; Tyack et al., 2011). 
Atlantic Shores does not anticipate, and NMFS is not proposing to 
authorize take of beaked whales and, moreover, the sounds produced by 
Atlantic Shores do not have signal characteristics similar to 
predators. Therefore we would not expect such extreme reactions to 
occur. Southall et al. (2011) found that blue whales had a different 
response to sonar exposure depending on behavioral state, more 
pronounced when deep feeding/travel modes than when engaged in surface 
feeding.
    One potential consequence of behavioral avoidance is the altered 
energetic expenditure of marine mammals because energy is required to 
move and avoid surface vessels or the sound field associated with 
active sonar (Frid and Dill, 2002). Most animals can avoid that 
energetic cost by swimming away at slow speeds or speeds that minimize 
the cost of transport (Miksis-Olds, 2006), as has been demonstrated in 
Florida manatees (Miksis-Olds, 2006). Those energetic costs increase, 
however, when animals shift from a resting state, which is designed to 
conserve an animal's energy, to an active state that consumes energy 
the animal would have conserved had it not been disturbed. Marine 
mammals that have been disturbed by anthropogenic noise and vessel 
approaches are commonly reported to shift from resting to active 
behavioral states, which would imply that they incur an energy cost.
    Forney et al. (2017) detailed the potential effects of noise on 
marine mammal populations with high site fidelity, including 
displacement and auditory masking, noting that a lack of observed 
response does not imply absence of fitness costs and that apparent 
tolerance of disturbance may have population-level impacts that are 
less obvious and difficult to document. Avoidance of overlap between 
disturbing noise and areas and/or times of particular importance for 
sensitive species may be critical to avoiding population-level impacts 
because (particularly for animals with high site fidelity) there may be 
a strong motivation to remain in the area despite negative impacts. 
Forney et al. (2017) stated that, for these animals, remaining in a 
disturbed area may reflect a lack of alternatives rather than a lack of 
effects.
    A flight response is a dramatic change in normal movement to a 
directed and rapid movement away from the perceived location of a sound 
source. The flight response differs from other

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avoidance responses in the intensity of the response (e.g., directed 
movement, rate of travel). Relatively little information on flight 
responses of marine mammals to anthropogenic signals exist, although 
observations of flight responses to the presence of predators have 
occurred (Connor and Heithaus, 1996; Frid and Dill, 2002). The result 
of a flight response could range from brief, temporary exertion and 
displacement from the area where the signal provokes flight to, in 
extreme cases, beaked whale strandings (Cox et al., 2006; D'Amico et 
al., 2009). However, it should be noted that response to a perceived 
predator does not necessarily invoke flight (Ford and Reeves, 2008), 
and whether individuals are solitary or in groups may influence the 
response. Flight responses of marine mammals have been documented in 
response to mobile high intensity active sonar (e.g., Tyack et al., 
2011; DeRuiter et al., 2013; Wensveen et al., 2019), and more severe 
responses have been documented when sources are moving towards an 
animal or when they are surprised by unpredictable exposures (Watkins, 
1986; Falcone et al., 2017). Generally speaking, however, marine 
mammals would be expected to be less likely to respond with a flight 
response to either stationary pile driving (which they can sense is 
stationary and predictable) or significantly lower-level HRG surveys, 
unless they are within the area ensonified above behavioral harassment 
thresholds at the moment the source is turned on (Watkins, 1986; 
Falcone et al., 2017).
Diving and Foraging
    Changes in dive behavior in response to noise exposure can vary 
widely. They may consist of increased or decreased dive times and 
surface intervals as well as changes in the rates of ascent and descent 
during a dive (e.g., Frankel and Clark, 2000; Costa et al., 2003; Ng 
and Leung, 2003; Nowacek et al., 2004; Goldbogen et al., 2013a; 
Goldbogen et al., 2013b). Variations in dive behavior may reflect 
interruptions in biologically significant activities (e.g., foraging) 
or they may be of little biological significance. Variations in dive 
behavior may also expose an animal to potentially harmful conditions 
(e.g., increasing the chance of ship-strike) or may serve as an 
avoidance response that enhances survivorship. The impact of a 
variation in diving resulting from an acoustic exposure depends on what 
the animal is doing at the time of the exposure, the type and magnitude 
of the response, and the context within which the response occurs 
(e.g., the surrounding environmental and anthropogenic circumstances).
    Nowacek et al. (2004) reported disruptions of dive behaviors in 
foraging North Atlantic right whales when exposed to an alerting 
stimulus, an action, they noted, that could lead to an increased 
likelihood of vessel strike. The alerting stimulus was in the form of 
an 18 minute exposure that included three 2-minute signals played three 
times sequentially. This stimulus was designed with the purpose of 
providing signals distinct to background noise that serve as 
localization cues. However, the whales did not respond to playbacks of 
either right whale social sounds or vessel noise, highlighting the 
importance of the sound characteristics in producing a behavioral 
reaction. Although source levels for the proposed pile driving 
activities may exceed the received level of the alerting stimulus 
described by Nowacek et al. (2004), proposed mitigation strategies 
(further described in the Proposed Mitigation section) will reduce the 
severity of response to proposed pile driving activities. Converse to 
the behavior of North Atlantic right whales, Indo-Pacific humpback 
dolphins have been observed to dive for longer periods of time in areas 
where vessels were present and/or approaching (Ng and Leung, 2003). In 
both of these studies, the influence of the sound exposure cannot be 
decoupled from the physical presence of a surface vessel, thus 
complicating interpretations of the relative contribution of each 
stimulus to the response. Indeed, the presence of surface vessels, 
their approach, and speed of approach, seemed to be significant factors 
in the response of the Indo-Pacific humpback dolphins (Ng and Leung, 
2003). Low frequency signals of the Acoustic Thermometry of Ocean 
Climate (ATOC) sound source were not found to affect dive times of 
humpback whales in Hawaiian waters (Frankel and Clark, 2000) or to 
overtly affect elephant seal dives (Costa et al., 2003). They did, 
however, produce subtle effects that varied in direction and degree 
among the individual seals, illustrating the equivocal nature of 
behavioral effects and consequent difficulty in defining and predicting 
them.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the cessation of secondary 
indicators of foraging (e.g., bubble nets or sediment plumes), or 
changes in dive behavior. As for other types of behavioral response, 
the frequency, duration, and temporal pattern of signal presentation, 
as well as differences in species sensitivity, are likely contributing 
factors to differences in response in any given circumstance (e.g., 
Croll et al., 2001; Nowacek et al., 2004; Madsen et al., 2006a; 
Yazvenko et al., 2007; Southall et al., 2019b). An understanding of the 
energetic requirements of the affected individuals and the relationship 
between prey availability, foraging effort and success, and the life 
history stage of the animal can facilitate the assessment of whether 
foraging disruptions are likely to incur fitness consequences 
(Goldbogen et al., 2013b; Farmer et al., 2018; Pirotta et al., 2018; 
Southall et al., 2019a; Pirotta et al., 2021).
    Impacts on marine mammal foraging rates from noise exposure have 
been documented, though there is little data regarding the impacts of 
offshore turbine construction specifically. Several broader examples 
follow, and it is reasonable to expect that exposure to noise produced 
during the 5 years the proposed rule would be effective could have 
similar impacts.
    Visual tracking, passive acoustic monitoring, and movement 
recording tags were used to quantify sperm whale behavior prior to, 
during, and following exposure to airgun arrays at received levels in 
the range 140-160 dB at distances of 7-13 km, following a phase-in of 
sound intensity and full array exposures at 1-13 km (Madsen et al., 
2006a; Miller et al., 2009). Sperm whales did not exhibit horizontal 
avoidance behavior at the surface. However, foraging behavior may have 
been affected. The sperm whales exhibited 19 percent less vocal (buzz) 
rate during full exposure relative to post exposure, and the whale that 
was approached most closely had an extended resting period and did not 
resume foraging until the airguns had ceased firing. The remaining 
whales continued to execute foraging dives throughout exposure; 
however, swimming movements during foraging dives were 6 percent lower 
during exposure than control periods (Miller et al., 2009). Miller et 
al. (2009) noted that more data are required to understand whether the 
differences were due to exposure or natural variation in sperm whale 
behavior.
    Balaenopterid whales exposed to moderate low-frequency signals 
similar to the ATOC sound source demonstrated no variation in foraging 
activity (Croll et al., 2001), whereas five out of six North Atlantic 
right whales exposed to an acoustic alarm interrupted their foraging 
dives (Nowacek et al., 2004). Although the received sound pressure 
levels (SPLs)

[[Page 65455]]

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

[[Page 65456]]

common biomechanical cochlear properties across taxa.
    Therefore, when the coincident (masking) sound is man-made, it may 
be considered harassment when disrupting behavioral patterns. It is 
important to distinguish TTS and PTS, which persist after the sound 
exposure, from masking, which only occurs during the sound exposure. 
Because masking (without resulting in threshold shift) is not 
associated with abnormal physiological function, it is not considered a 
physiological effect, but rather a potential behavioral effect.
    The frequency range of the potentially masking sound is important 
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation 
sounds produced by odontocetes but are more likely to affect detection 
of mysticete communication calls and other potentially important 
natural sounds such as those produced by surf and some prey species. 
The masking of communication signals by anthropogenic noise may be 
considered as a reduction in the communication space of animals (e.g., 
Clark et al., 2009; Matthews et al., 2017) and may result in energetic 
or other costs as animals change their vocalization behavior (e.g., 
Miller et al., 2000; Foote et al., 2004; Parks et al., 2007; Di Iorio 
and Clark, 2009; Holt et al., 2009). Masking can be reduced in 
situations where the signal and noise come from different directions 
(Richardson et al., 1995), through amplitude modulation of the signal, 
or through other compensatory behaviors (Houser and Moore, 2014). 
Masking can be tested directly in captive species (e.g., Erbe, 2008), 
but in wild populations it must be either modeled or inferred from 
evidence of masking compensation. There are few studies addressing 
real-world masking sounds likely to be experienced by marine mammals in 
the wild (e.g., Branstetter et al., 2013; Cholewiak et al., 2018).
    The echolocation calls of toothed whales are subject to masking by 
high-frequency sound. Human data indicate low-frequency sound can mask 
high-frequency sounds (i.e., upward masking). Studies on captive 
odontocetes by Au et al. (1974, 1985, 1993) indicate that some species 
may use various processes to reduce masking effects (e.g., adjustments 
in echolocation call intensity or frequency as a function of background 
noise conditions). There is also evidence that the directional hearing 
abilities of odontocetes are useful in reducing masking at the high-
frequencies these cetaceans use to echolocate, but not at the low-to-
moderate frequencies they use to communicate (Zaitseva et al., 1980). A 
study by Nachtigall and Supin (2008) showed that false killer whales 
adjust their hearing to compensate for ambient sounds and the intensity 
of returning echolocation signals.
    Impacts on signal detection, measured by masked detection 
thresholds, are not the only important factors to address when 
considering the potential effects of masking. As marine mammals use 
sound to recognize conspecifics, prey, predators, or other biologically 
significant sources (Branstetter et al., 2016), it is also important to 
understand the impacts of masked recognition thresholds (often called 
``informational masking''). Branstetter et al. (2016) measured masked 
recognition thresholds for whistle-like sounds of bottlenose dolphins 
and observed that they are approximately 4 dB above detection 
thresholds (energetic masking) for the same signals. Reduced ability to 
recognize a conspecific call or the acoustic signature of a predator 
could have severe negative impacts. Branstetter et al. (2016) observed 
that if ``quality communication'' is set at 90 percent recognition the 
output of communication space models (which are based on 50 percent 
detection) would likely result in a significant decrease in 
communication range.
    As marine mammals use sound to recognize predators (Allen et al., 
2014; Cummings and Thompson, 1971; Cur[eacute] et al., 2015; Fish and 
Vania, 1971), the presence of masking noise may also prevent marine 
mammals from responding to acoustic cues produced by their predators, 
particularly if it occurs in the same frequency band. For example, 
harbor seals that reside in the coastal waters off British Columbia are 
frequently targeted by mammal-eating killer whales. The seals 
acoustically discriminate between the calls of mammal-eating and fish-
eating killer whales (Deecke et al., 2002), a capability that should 
increase survivorship while reducing the energy required to attend to 
all killer whale calls. Similarly, sperm whales (Cur[eacute] et al., 
2016; Isojunno et al., 2016), long-finned pilot whales (Visser et al., 
2016), and humpback whales (Cur[eacute] et al., 2015) changed their 
behavior in response to killer whale vocalization playbacks; these 
findings indicate that some recognition of predator cues could be 
missed if the killer whale vocalizations were masked. The potential 
effects of masked predator acoustic cues depends on the duration of the 
masking noise and the likelihood of a marine mammal encountering a 
predator during the time that detection and recognition of predator 
cues are impeded.
    Redundancy and context can also facilitate detection of weak 
signals. These phenomena may help marine mammals detect weak sounds in 
the presence of natural or manmade noise. Most masking studies in 
marine mammals present the test signal and the masking noise from the 
same direction. The dominant background noise may be highly directional 
if it comes from a particular anthropogenic source such as a ship or 
industrial site. Directional hearing may significantly reduce the 
masking effects of these sounds by improving the effective signal-to-
noise ratio.
    Masking affects both senders and receivers of acoustic signals and, 
at higher levels and longer duration, can potentially have long-term 
chronic effects on marine mammals at the population level as well as at 
the individual level. Low-frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, with most of the increase 
from distant commercial shipping (Hildebrand, 2009; Cholewiak et al., 
2018). All anthropogenic sound sources, but especially chronic and 
lower-frequency signals (e.g., from commercial vessel traffic), 
contribute to elevated ambient sound levels, thus intensifying masking.
    In addition to making it more difficult for animals to perceive and 
recognize acoustic cues in their environment, anthropogenic sound 
presents separate challenges for animals that are vocalizing. When they 
vocalize, animals are aware of environmental conditions that affect the 
``active space'' (or communication space) of their vocalizations, which 
is the maximum area within which their vocalizations can be detected 
before it drops to the level of ambient noise (Brenowitz, 2004; Brumm 
et al., 2004; Lohr et al., 2003). Animals are also aware of 
environmental conditions that affect whether listeners can discriminate 
and recognize their vocalizations from other sounds, which is more 
important than simply detecting that a vocalization is occurring 
(Brenowitz, 1982; Brumm et al., 2004; Dooling, 2004; Marten and Marler, 
1977; Patricelli and Blickley, 2006). Most species that vocalize have 
evolved with an ability to make adjustments to their vocalizations to 
increase the signal-to-noise ratio, active space, and recognizability/
distinguishability of their vocalizations in the face of temporary 
changes in background noise (Brumm et al., 2004; Patricelli and 
Blickley, 2006).

[[Page 65457]]

Vocalizing animals can make adjustments to vocalization characteristics 
such as the frequency structure, amplitude, temporal structure, and 
temporal delivery (repetition rate), or ceasing to vocalize.
    Many animals will combine several of these strategies to compensate 
for high levels of background noise. Anthropogenic sounds that reduce 
the signal-to-noise ratio of animal vocalizations, increase the masked 
auditory thresholds of animals listening for such vocalizations, or 
reduce the active space of an animal's vocalizations impair 
communication between animals. Most animals that vocalize have evolved 
strategies to compensate for the effects of short-term or temporary 
increases in background or ambient noise on their songs or calls. 
Although the fitness consequences of these vocal adjustments are not 
directly known in all instances, like most other trade-offs animals 
must make, some of these strategies likely come at a cost (Patricelli 
and Blickley, 2006; Noren et al., 2017; Noren et al., 2020). Shifting 
songs and calls to higher frequencies may also impose energetic costs 
(Lambrechts, 1996).
    Marine mammals are also known to make vocal changes in response to 
anthropogenic noise. In cetaceans, vocalization changes have been 
reported from exposure to anthropogenic noise sources such as sonar, 
vessel noise, and seismic surveying (see the following for examples: 
Gordon et al., 2003; Di Iorio and Clark, 2009; Hatch et al., 2012; Holt 
et al., 2009; Holt et al., 2011; Lesage et al., 1999; McDonald et al., 
2009; Parks et al., 2007; Risch et al., 2012; Rolland et al., 2012; 
Sorenson et al., 2023), as well as changes in the natural acoustic 
environment (Dunlop et al., 2014). Vocal changes can be temporary, or 
can be persistent. For example, model simulation suggests that the 
increase in starting frequency for the North Atlantic right whale 
upcall over the last 50 years resulted in increased detection ranges 
between right whales. The frequency shift, coupled with an increase in 
call intensity by 20 dB, led to a call detectability range of less than 
3 km to over 9 km (Tennessen and Parks, 2016). Holt et al. (2009) 
measured killer whale call source levels and background noise levels in 
the 1 to 40 kHz band and reported that the whales increased their call 
source levels by 1 dB SPL for every 1 dB SPL increase in background 
noise level. Similarly, another study on St. Lawrence River belugas 
reported a similar rate of increase in vocalization activity in 
response to passing vessels (Scheifele et al., 2005). Di Iorio and 
Clark (2009) showed that blue whale calling rates vary in association 
with seismic sparker survey activity, with whales calling more on days 
with surveys than on days without surveys. They suggested that the 
whales called more during seismic survey periods as a way to compensate 
for the elevated noise conditions.
    In some cases, these vocal changes may have fitness consequences, 
such as an increase in metabolic rates and oxygen consumption, as 
observed in bottlenose dolphins when increasing their call amplitude 
(Holt et al., 2015). A switch from vocal communication to physical, 
surface-generated sounds such as pectoral fin slapping or breaching was 
observed for humpback whales in the presence of increasing natural 
background noise levels, indicating that adaptations to masking may 
also move beyond vocal modifications (Dunlop et al., 2010).
    While these changes all represent possible tactics by the sound-
producing animal to reduce the impact of masking, the receiving animal 
can also reduce masking by using active listening strategies such as 
orienting to the sound source, moving to a quieter location, or 
reducing self-noise from hydrodynamic flow by remaining still. The 
temporal structure of noise (e.g., amplitude modulation) may also 
provide a considerable release from masking through comodulation 
masking release (a reduction of masking that occurs when broadband 
noise, with a frequency spectrum wider than an animal's auditory filter 
bandwidth at the frequency of interest, is amplitude modulated) 
(Branstetter and Finneran, 2008; Branstetter et al., 2013). Signal type 
(e.g., whistles, burst-pulse, sonar clicks) and spectral 
characteristics (e.g., frequency modulated with harmonics) may further 
influence masked detection thresholds (Branstetter et al., 2016; 
Cunningham et al., 2014).
    Masking is more likely to occur in the presence of broadband, 
relatively continuous noise sources, such as vessels. Several studies 
have shown decreases in marine mammal communication space and changes 
in behavior as a result of the presence of vessel noise. For example, 
right whales were observed to shift the frequency content of their 
calls upward while reducing the rate of calling in areas of increased 
anthropogenic noise (Parks et al., 2007) as well as increasing the 
amplitude (intensity) of their calls (Parks, 2009; Parks et al., 2011). 
Clark et al. (2009) observed that right whales' communication space 
decreased by up to 84 percent in the presence of vessels. Cholewiak et 
al. (2018) also observed loss in communication space in Stellwagen 
National Marine Sanctuary for North Atlantic right whales, fin whales, 
and humpback whales with increased ambient noise and shipping noise. 
Although humpback whales off Australia did not change the frequency or 
duration of their vocalizations in the presence of ship noise, their 
source levels were lower than expected based on source level changes to 
wind noise, potentially indicating some signal masking (Dunlop, 2016). 
Multiple delphinid species have also been shown to increase the minimum 
or maximum frequencies of their whistles in the presence of 
anthropogenic noise and reduced communication space (for examples see: 
Holt et al., 2009; Holt et al., 2011; Gervaise et al., 2012; Williams 
et al., 2013; Hermannsen et al., 2014; Papale et al., 2015; Liu et al., 
2017). While masking impacts are not a concern from lower intensity, 
higher frequency HRG surveys, some degree of masking would be expected 
in the vicinity of turbine pile driving and concentrated support vessel 
operation. However, pile driving is an intermittent sound and would not 
be continuous throughout a day.
Habituation and Sensitization
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. It is important to note that 
habituation is appropriately considered as a ``progressive reduction in 
response to stimuli that are perceived as neither aversive nor 
beneficial,'' rather than as, more generally, moderation in response to 
human disturbance having a neutral or positive outcome (Bejder et al., 
2009). The opposite process is sensitization, when an unpleasant 
experience leads to subsequent responses, often in the form of 
avoidance, at a lower level of exposure.
    Both habituation and sensitization require an ongoing learning 
process. As noted, behavioral state may affect the type of response. 
For example, animals that are resting may show greater behavioral 
change in response to disturbing sound levels than animals that are 
highly motivated to remain in an area for feeding (Richardson et al., 
1995; National Research Council (NRC), 2003; Wartzok et al., 2003; 
Southall et al., 2019b). Controlled experiments with captive marine 
mammals have shown pronounced behavioral reactions, including avoidance 
of loud sound sources (e.g., Ridgway et al., 1997; Finneran et al., 
2003; Houser et al.,

[[Page 65458]]

2013a; Houser et al., 2013b; Kastelein et al., 2018). Observed 
responses of wild marine mammals to loud impulsive sound sources 
(typically airguns or acoustic harassment devices) have been varied but 
often consist of avoidance behavior or other behavioral changes 
suggesting discomfort (Morton and Symonds, 2002; see also Richardson et 
al., 1995; Nowacek et al., 2007; Tougaard et al., 2009; Brandt et al., 
2011; Brandt et al., 2012; D[auml]hne et al., 2013; Brandt et al., 
2014; Russell et al., 2016; Brandt et al., 2018).
    Stone (2015) reported data from at-sea observations during 1,196 
airgun surveys from 1994 to 2010. When large arrays of airguns 
(considered to be 500 in 3 or more) were firing, lateral displacement, 
more localized avoidance, or other changes in behavior were evident for 
most odontocetes. However, significant responses to large arrays were 
found only for the minke whale and fin whale. Behavioral responses 
observed included changes in swimming or surfacing behavior with 
indications that cetaceans remained near the water surface at these 
times. Behavioral observations of gray whales during an airgun survey 
monitored whale movements and respirations pre-, during-, and post-
seismic survey (Gailey et al., 2016). Behavioral state and water depth 
were the best 'natural' predictors of whale movements and respiration 
and after considering natural variation, none of the response variables 
were significantly associated with survey or vessel sounds. Many 
delphinids approach low-frequency airgun source vessels with no 
apparent discomfort or obvious behavioral change (e.g., Barkaszi et 
al., 2012), indicating the importance of frequency output in relation 
to the species' hearing sensitivity.
Physiological Responses
    An animal's perception of a threat may be sufficient to trigger 
stress responses consisting of some combination of behavioral 
responses, autonomic nervous system responses, neuroendocrine 
responses, or immune responses (e.g., Seyle, 1950; Moberg, 2000). In 
many cases, an animal's first and sometimes most economical (in terms 
of energetic costs) response is behavioral avoidance of the potential 
stressor. Autonomic nervous system responses to stress typically 
involve changes in heart rate, blood pressure, and gastrointestinal 
activity. These responses have a relatively short duration and may or 
may not have a significant long-term effect on an animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 
2000). Increases in the circulation of glucocorticoids are also equated 
with stress (Romano et al., 2004).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficiently to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses are well studied through 
controlled experiments and for both laboratory and free-ranging animals 
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; 
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to 
exposure to anthropogenic sounds or other stressors and their effects 
on marine mammals have also been reviewed (Fair and Becker, 2000; 
Romano et al., 2002b) and, more rarely, studied in wild populations 
(e.g., Lusseau and Bejder, 2007; Romano et al., 2002a; Rolland et al., 
2012). For example, Rolland et al. (2012) found that noise reduction 
from reduced ship traffic in the Bay of Fundy was associated with 
decreased stress in North Atlantic right whales.
    These and other studies lead to a reasonable expectation that some 
marine mammals will experience physiological stress responses upon 
exposure to acoustic stressors and that it is possible that some of 
these would be classified as ``distress.'' In addition, any animal 
experiencing TTS would likely also experience stress responses (NRC, 
2003, 2017).
    Respiration naturally varies with different behaviors and 
variations in respiration rate as a function of acoustic exposure can 
be expected to co-occur with other behavioral reactions, such as a 
flight response or an alteration in diving. However, respiration rates 
in and of themselves may be representative of annoyance or an acute 
stress response. Mean exhalation rates of gray whales at rest and while 
diving were found to be unaffected by seismic surveys conducted 
adjacent to the whale feeding grounds (Gailey et al., 2007). Studies 
with captive harbor porpoises show increased respiration rates upon 
introduction of acoustic alarms (Kastelein et al., 2001; Kastelein et 
al., 2006a) and emissions for underwater data transmission (Kastelein 
et al., 2005). However, exposure of the same acoustic alarm to a 
striped dolphin under the same conditions did not elicit a response 
(Kastelein et al., 2006a), again highlighting the importance in 
understanding species differences in the tolerance of underwater noise 
when determining the potential for impacts resulting from anthropogenic 
sound exposure.
Stranding
    The definition for a stranding under title IV of the MMPA is that 
(A) a marine mammal is dead and is (i) on a beach or shore of the 
United States; or (ii) in waters under the jurisdiction of the United 
States (including any navigable waters); or (B) a marine mammal is 
alive and is (i) on a beach or shore of the United States and is unable 
to return to the water; (ii) on a beach or shore of the United States 
and, although able to return to the water, is in need of apparent 
medical attention; or (iii) in the waters under the jurisdiction of the 
United States (including any navigable waters), but is unable to return 
to its natural habitat under its own power or without assistance (16 
U.S.C. 1421h).
    Marine mammal strandings have been linked to a variety of causes, 
such as illness from exposure to infectious agents, biotoxins, or 
parasites; starvation; unusual oceanographic or weather events; or 
anthropogenic causes including fishery interaction, vessel strike, 
entrainment, entrapment, sound exposure, or combinations of these 
stressors sustained concurrently or in series. There have been multiple 
events worldwide in which marine mammals (primarily beaked whales, or 
other deep divers) have stranded coincident with relatively nearby 
activities utilizing loud sound sources (primarily military training 
events), and five in which mid-frequency active sonar has been more 
definitively determined to have been a contributing factor.
    There are multiple theories regarding the specific mechanisms 
responsible for

[[Page 65459]]

marine mammal strandings caused by exposure to loud sounds. One primary 
theme is the behaviorally mediated responses of deep-diving species 
(odontocetes), in which their startled response to an acoustic 
disturbance (1) affects ascent or descent rates, the time they stay at 
depth or the surface, or other regular dive patterns that are used to 
physiologically manage gas formation and absorption within their 
bodies, such that the formation or growth of gas bubbles damages 
tissues or causes other injury, or (2) results in their flight to 
shallow areas, enclosed bays, or other areas considered ``out of 
habitat,'' in which they become disoriented and physiologically 
compromised. For more information on marine mammal stranding events and 
potential causes, please see the Mortality and Stranding section of 
NMFS Proposed Incidental Take Regulations for the Navy's Training and 
Testing Activities in the Hawaii-Southern California Training and 
Testing Study Area (50 CFR part 218, Volume 83, No. 123, June 26, 
2018).
    The construction activities proposed by Atlantic Shores (i.e., pile 
driving) do not inherently have the potential to result in marine 
mammal strandings. While vessel strikes could kill or injure a marine 
mammals (which may eventually strand), the required mitigation measures 
would reduce the potential for take from these activities to de minimis 
levels (see Proposed Mitigation section for more details). As described 
above, no mortality or serious injury is anticipated or proposed to be 
authorized from any project activities.
    Of the strandings documented to date worldwide, NMFS is not aware 
of any being attributed to pile driving or the types of HRG equipment 
proposed for use during the project. Recently, there has been 
heightened interest in HRG surveys and their potential role in recent 
marine mammals strandings along the U.S. east coast. HRG surveys 
involve the use of certain sources to image the ocean bottom, which are 
very different from seismic airguns used in oil and gas surveys or 
tactical military sonar, in that they produce much smaller impact 
zones. Marine mammals may respond to exposure to these sources by, for 
example, avoiding the immediate area, which is why offshore wind 
developers have authorization to allow for Level B (behavioral) 
harassment, including Atlantic Shores. However, because of the 
combination of lower source levels, higher frequency, narrower beam-
width (for some sources), and other factors, the area within which a 
marine mammal might be expected to be behaviorally disturbed by HRG 
sources is much smaller (by orders of magnitude) than the impact areas 
for seismic airguns or the military sonar with which a small number of 
marine mammal have been causally associated. Specifically, estimated 
harassment zones for HRG surveys are typically less than 200 m (656.2 
ft; such as those associated with the project), while zones for 
military mid-frequency active sonar or seismic airgun surveys typically 
extend for several kms ranging up to 10s of km. Further, because of 
this much smaller ensonified area, any marine mammal exposure to HRG 
sources is reasonably expected to be at significantly lower levels and 
shorter duration (associated with less severe responses), and there is 
no evidence suggesting, or reason to speculate, that marine mammals 
exposed to HRG survey noise are likely to be injured, much less strand, 
as a result. Last, all but one of the small number of marine mammal 
stranding events that have been causally associated with exposure to 
loud sound sources have been deep-diving toothed whale species (not 
mysticetes), which are known to respond differently to loud sounds.

Potential Effects of Disturbance on Marine Mammal Fitness

    The different ways that marine mammals respond to sound are 
sometimes indicators of the ultimate effect that exposure to a given 
stimulus will have on the well-being (survival, reproduction, etc.) of 
an animal. There is numerous data relating the exposure of terrestrial 
mammals from sound to effects on reproduction or survival, and data for 
marine mammals continues to grow. Several authors have reported that 
disturbance stimuli may cause animals to abandon nesting and foraging 
sites (Sutherland and Crockford, 1993); may cause animals to increase 
their activity levels and suffer premature deaths or reduced 
reproductive success when their energy expenditures exceed their energy 
budgets (Daan et al., 1996; Feare, 1976; Mullner et al., 2004); or may 
cause animals to experience higher predation rates when they adopt 
risk-prone foraging or migratory strategies (Frid and Dill, 2002). Each 
of these studies addressed the consequences of animals shifting from 
one behavioral state (e.g., resting or foraging) to another behavioral 
state (e.g., avoidance or escape behavior) because of human disturbance 
or disturbance stimuli.
    Attention is the cognitive process of selectively concentrating on 
one aspect of an animal's environment while ignoring other things 
(Posner, 1994). Because animals (including humans) have limited 
cognitive resources, there is a limit to how much sensory information 
they can process at any time. The phenomenon called ``attentional 
capture'' occurs when a stimulus (usually a stimulus that an animal is 
not concentrating on or attending to) ``captures'' an animal's 
attention. This shift in attention can occur consciously or 
subconsciously (for example, when an animal hears sounds that it 
associates with the approach of a predator) and the shift in attention 
can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has 
captured an animal's attention, the animal can respond by ignoring the 
stimulus, assuming a ``watch and wait'' posture, or treat the stimulus 
as a disturbance and respond accordingly, which includes scanning for 
the source of the stimulus or ``vigilance'' (Cowlishaw et al., 2004).
    Vigilance is an adaptive behavior that helps animals determine the 
presence or absence of predators, assess their distance from 
conspecifics, or to attend cues from prey (Bednekoff and Lima, 1998; 
Treves, 2000). Despite those benefits, however, vigilance has a cost of 
time; when animals focus their attention on specific environmental 
cues, they are not attending to other activities such as foraging or 
resting. These effects have generally not been demonstrated for marine 
mammals, but studies involving fish and terrestrial animals have shown 
that increased vigilance may substantially reduce feeding rates (Saino, 
1994; Beauchamp and Livoreil, 1997; Fritz et al., 2002; Purser and 
Radford, 2011). Animals will spend more time being vigilant, which may 
translate to less time foraging or resting, when disturbance stimuli 
approach them more directly, remain at closer distances, have a greater 
group size (e.g., multiple surface vessels), or when they co-occur with 
times that an animal perceives increased risk (e.g., when they are 
giving birth or accompanied by a calf).
    The primary mechanism by which increased vigilance and disturbance 
appear to affect the fitness of individual animals is by disrupting an 
animal's time budget and, as a result, reducing the time they might 
spend foraging and resting (which increases an animal's activity rate 
and energy demand while decreasing their caloric intake/energy). In a 
study of northern resident killer whales off Vancouver Island, exposure 
to boat traffic was shown to reduce foraging opportunities and increase 
traveling time (Holt et al., 2021). A simple bioenergetics model was 
applied to show that the reduced foraging opportunities equated to a 
decreased energy intake of 18 percent while the

[[Page 65460]]

increased traveling incurred an increased energy output of 3-4 percent, 
which suggests that a management action based on avoiding interference 
with foraging might be particularly effective.
    On a related note, many animals perform vital functions, such as 
feeding, resting, traveling, and socializing, on a diel cycle (24-hour 
cycle). Behavioral reactions to noise exposure (such as disruption of 
critical life functions, displacement, or avoidance of important 
habitat) are more likely to be significant for fitness if they last 
more than one diel cycle or recur on subsequent days (Southall et al., 
2007). Consequently, a behavioral response lasting less than 1 day and 
not recurring on subsequent days is not considered particularly severe 
unless it could directly affect reproduction or survival (Southall et 
al., 2007). It is important to note the difference between behavioral 
reactions lasting or recurring over multiple days and anthropogenic 
activities lasting or recurring over multiple days. For example, just 
because certain activities last for multiple days does not necessarily 
mean that individual animals will be either exposed to those activity-
related stressors (i.e., sonar) for multiple days or further exposed in 
a manner that would result in sustained multi-day substantive 
behavioral responses. However, special attention is warranted where 
longer-duration activities overlay areas in which animals are known to 
congregate for longer durations for biologically important behaviors.
    There are few studies that directly illustrate the impacts of 
disturbance on marine mammal populations. Lusseau and Bejder (2007) 
present data from three long-term studies illustrating the connections 
between disturbance from whale-watching boats and population-level 
effects in cetaceans. In Shark Bay, Australia, the abundance of 
bottlenose dolphins was compared within adjacent control and tourism 
sites over three consecutive 4.5-year periods of increasing tourism 
levels. Between the second and third time periods, in which tourism 
doubled, dolphin abundance decreased by 15 percent in the tourism area 
and did not change significantly in the control area. In Fiordland, New 
Zealand, two populations (Milford and Doubtful Sounds) of bottlenose 
dolphins with tourism levels that differed by a factor of seven were 
observed and significant increases in traveling time and decreases in 
resting time were documented for both. Consistent short-term avoidance 
strategies were observed in response to tour boats until a threshold of 
disturbance was reached (average 68 minutes between interactions), 
after which the response switched to a longer-term habitat displacement 
strategy. For one population, tourism only occurred in a part of the 
home range. However, tourism occurred throughout the home range of the 
Doubtful Sound population and once boat traffic increased beyond the 
68-minute threshold (resulting in abandonment of their home range/
preferred habitat), reproductive success drastically decreased 
(increased stillbirths) and abundance decreased significantly (from 67 
to 56 individuals in a short period).
    In order to understand how the effects of activities may or may not 
impact species and stocks of marine mammals, it is necessary to 
understand not only what the likely disturbances are going to be but 
how those disturbances may affect the reproductive success and 
survivorship of individuals and then how those impacts to individuals 
translate to population-level effects. Following on the earlier work of 
a committee of the U.S. National Research Council (NRC, 2005), New et 
al. (2014), in an effort termed the Potential Consequences of 
Disturbance (PCoD), outline an updated conceptual model of the 
relationships linking disturbance to changes in behavior and 
physiology, health, vital rates, and population dynamics. This 
framework is a four-step process progressing from changes in individual 
behavior and/or physiology, to changes in individual health, then vital 
rates, and finally to population-level effects. In this framework, 
behavioral and physiological changes can have direct (acute) effects on 
vital rates, such as when changes in habitat use or increased stress 
levels raise the probability of mother-calf separation or predation; 
indirect and long-term (chronic) effects on vital rates, such as when 
changes in time/energy budgets or increased disease susceptibility 
affect health, which then affects vital rates; or no effect to vital 
rates (New et al., 2014).
    Since the PCoD general framework was outlined and the relevant 
supporting literature compiled, multiple studies developing state-space 
energetic models for species with extensive long-term monitoring (e.g., 
southern elephant seals, North Atlantic right whales, Ziphiidae beaked 
whales, and bottlenose dolphins) have been conducted and can be used to 
effectively forecast longer-term, population-level impacts from 
behavioral changes. While these are very specific models with very 
specific data requirements that cannot yet be applied broadly to 
project-specific risk assessments for the majority of species, they are 
a critical first step towards being able to quantify the likelihood of 
a population level effect. Since New et al. (2014), several 
publications have described models developed to examine the long-term 
effects of environmental or anthropogenic disturbance of foraging on 
various life stages of selected species (e.g., sperm whale, Farmer et 
al. (2018); California sea lion, McHuron et al. (2018); blue whale, 
Pirotta et al. (2018a); humpback whale, Dunlop et al. (2021)). These 
models continue to add to refinement of the approaches to the PCoD 
framework. Such models also help identify what data inputs require 
further investigation. Pirotta et al. (2018b) provides a review of the 
PCoD framework with details on each step of the process and approaches 
to applying real data or simulations to achieve each step.
    Despite its simplicity, there are few complete PCoD models 
available for any marine mammal species due to a lack of data available 
to parameterize many of the steps. To date, no PCoD model has been 
fully parameterized with empirical data (Pirotta et al., 2018a) due to 
the fact they are data intensive and logistically challenging to 
complete. Therefore, most complete PCoD models include simulations, 
theoretical modeling, and expert opinion to move through the steps. For 
example, PCoD models have been developed to evaluate the effect of wind 
farm construction on the North Sea harbor porpoise populations (e.g., 
King et al., 2015; Nabe-Nielsen et al., 2018). These models include a 
mix of empirical data, expert elicitation (King et al., 2015) and 
simulations of animals' movements, energetics, and/or survival (New et 
al., 2014; Nabe-Nielsen et al., 2018).
    PCoD models may also be approached in different manners. Dunlop et 
al. (2021) modeled migrating humpback whale mother-calf pairs in 
response to seismic surveys using both a forwards and backwards 
approach. While a typical forwards approach can determine if a stressor 
would have population-level consequences, Dunlop et al. demonstrated 
that working backwards through a PCoD model can be used to assess the 
``worst case'' scenario for an interaction of a target species and 
stressor. This method may be useful for future management goals when 
appropriate data becomes available to fully support the model. In 
another example, harbor porpoise PCoD model investigating the impact of 
seismic surveys on harbor porpoise included an investigation on 
underlying drivers of vulnerability. Harbor porpoise movement and 
foraging were modeled for baseline periods and then for periods

[[Page 65461]]

with seismic surveys as well; the models demonstrated that temporal 
(i.e., seasonal) variation in individual energetics and their link to 
costs associated with disturbances was key in predicting population 
impacts (Gallagher et al., 2021).
    Behavioral change, such as disturbance manifesting in lost foraging 
time, in response to anthropogenic activities is often assumed to 
indicate a biologically significant effect on a population of concern. 
However, as described above, individuals may be able to compensate for 
some types and degrees of shifts in behavior, preserving their health 
and thus their vital rates and population dynamics. For example, New et 
al. (2013) developed a model simulating the complex social, spatial, 
behavioral and motivational interactions of coastal bottlenose dolphins 
in the Moray Firth, Scotland, to assess the biological significance of 
increased rate of behavioral disruptions caused by vessel traffic. 
Despite a modeled scenario in which vessel traffic increased from 70 to 
470 vessels a year (a 6-fold increase in vessel traffic) in response to 
the construction of a proposed offshore renewables' facility, the 
dolphins' behavioral time budget, spatial distribution, motivations, 
and social structure remain unchanged. Similarly, two bottlenose 
dolphin populations in Australia were also modeled over 5 years against 
a number of disturbances (Reed et al., 2020), and results indicated 
that habitat/noise disturbance had little overall impact on population 
abundances in either location, even in the most extreme impact 
scenarios modeled.
    By integrating different sources of data (e.g., controlled exposure 
data, activity monitoring, telemetry tracking, and prey sampling) into 
a theoretical model to predict effects from sonar on a blue whale's 
daily energy intake, Pirotta et al. (2021) found that tagged blue 
whales' activity budgets, lunging rates, and ranging patterns caused 
variability in their predicted cost of disturbance. This method may be 
useful for future management goals when appropriate data becomes 
available to fully support the model. Harbor porpoise movement and 
foraging were modeled for baseline periods and then for periods with 
seismic surveys as well; the models demonstrated that the seasonality 
of the seismic activity was an important predictor of impact (Gallagher 
et al., 2021).
    In Table 1 of Keen et al. (2021), the authors summarize the 
emerging themes in PCoD models that should be considered when assessing 
the likelihood and duration of exposure and the sensitivity of a 
population to disturbance (see Table 1 from Keen et al., 2021, below). 
The themes are categorized by life history traits (movement ecology, 
life history strategy, body size, and pace of life), disturbance source 
characteristics (overlap with biologically important areas, duration 
and frequency, and nature and context), and environmental conditions 
(natural variability in prey availability and climate change). Keen et 
al. (2021) then summarize how each of these features influence an 
assessment, noting, for example, that individual animals with small 
home ranges have a higher likelihood of prolonged or year-round 
exposure, that the effect of disturbance is strongly influenced by 
whether it overlaps with biologically important habitats when 
individuals are present, and that continuous disruption will have a 
greater impact than intermittent disruption.
    Nearly all PCoD studies and experts agree that infrequent exposures 
of a single day or less are unlikely to impact individual fitness, let 
alone lead to population level effects (Booth et al., 2016; Booth et 
al., 2017; Christiansen and Lusseau 2015; Farmer et al., 2018; Wilson 
et al., 2020; Harwood and Booth 2016; King et al., 2015; McHuron et 
al., 2018; National Academies of Sciences, Engineering, and Medicine 
(NAS), 2017; New et al., 2014; Pirotta et al., 2018a; Southall et al., 
2007; Villegas-Amtmann et al., 2015). As described through this 
proposed rule, NMFS expects that any behavioral disturbance that would 
occur due to animals being exposed to construction activity would be of 
a relatively short duration, with behavior returning to a baseline 
state shortly after the acoustic stimuli ceases or the animal moves far 
enough away from the source. Given this, and NMFS' evaluation of the 
available PCoD studies, and the required mitigation discussed later, 
any such behavioral disturbance resulting from Atlantic Shores' 
activities is not expected to impact individual animals' health or have 
effects on individual animals' survival or reproduction, thus no 
detrimental impacts at the population level are anticipated. Marine 
mammals may temporarily avoid the immediate area but are not expected 
to permanently abandon the area or their migratory or foraging 
behavior. Impacts to breeding, feeding, sheltering, resting, or 
migration are not expected nor are shifts in habitat use, distribution, 
or foraging success.

Potential Effects From Vessel Strike

    Vessel collisions with marine mammals, also referred to as vessel 
strikes or ship strikes, can result in death or serious injury of the 
animal. Wounds resulting from vessel strike may include massive trauma, 
hemorrhaging, broken bones, or propeller lacerations (Knowlton and 
Kraus, 2001). An animal at the surface could be struck directly by a 
vessel, a surfacing animal could hit the bottom of a vessel, or an 
animal just below the surface could be cut by a vessel's propeller. 
Superficial strikes may not kill or result in the death of the animal. 
Lethal interactions are typically associated with large whales, which 
are occasionally found draped across the bulbous bow of large 
commercial ships upon arrival in port. Although smaller cetaceans are 
more maneuverable in relation to large vessels than are large whales, 
they may also be susceptible to strike. The severity of injuries 
typically depends on the size and speed of the vessel (Knowlton and 
Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007; Conn and 
Silber, 2013). Impact forces increase with speed, as does the 
probability of a strike at a given distance (Silber et al., 2010; Gende 
et al., 2011).
    The most vulnerable marine mammals are those that spend extended 
periods of time at the surface in order to restore oxygen levels within 
their tissues after deep dives (e.g., the sperm whale). In addition, 
some baleen whales seem generally unresponsive to vessel sound, making 
them more susceptible to vessel collisions (Nowacek et al., 2004). 
These species are primarily large, slow moving whales. Marine mammal 
responses to vessels may include avoidance and changes in dive pattern 
(NRC, 2003).
    An examination of all known vessel strikes from all shipping 
sources (civilian and military) indicates vessel speed is a principal 
factor in whether a vessel strike occurs and, if so, whether it results 
in injury, serious injury, or mortality (Knowlton and Kraus, 2001; 
Laist et al., 2001; Jensen and Silber, 2003; Pace and Silber, 2005; 
Vanderlaan and Taggart, 2007; Conn and Silber, 2013). In assessing 
records in which vessel speed was known, Laist et al. (2001) found a 
direct relationship between the occurrence of a whale strike and the 
speed of the vessel involved in the collision. The authors concluded 
that most deaths occurred when a vessel was traveling in excess of 13 
kn (34.52 mph).
    Jensen and Silber (2003) detailed 292 records of known or probable 
vessel strikes of all large whale species from 1975 to 2002. Of these, 
vessel speed at the time of collision was reported for 58 cases. Of 
these 58 cases, 39 (or 67 percent) resulted in serious injury or death 
(19 of those resulted in serious injury as determined by blood in the

[[Page 65462]]

water, propeller gashes or severed tailstock, and fractured skull, jaw, 
vertebrae, hemorrhaging, massive bruising or other injuries noted 
during necropsy and 20 resulted in death). Operating speeds of vessels 
that struck various species of large whales ranged from 2 to 51 kn (2.3 
to 58.68 mph). The majority (79 percent) of these strikes occurred at 
speeds of 13 kn (34.52 mph) or greater. The average speed that resulted 
in serious injury or death was 18.6 kn (21.4 mph). Pace and Silber 
(2005) found that the probability of death or serious injury increased 
rapidly with increasing vessel speed. Specifically, the predicted 
probability of serious injury or death increased from 45 to 75 percent 
as vessel speed increased from 10 to 14 kn (11.51 to 16.11 mph) and 
exceeded 90 percent at 17 kn (19.56 mph). Higher speeds during 
collisions result in greater force of impact and also appear to 
increase the chance of severe injuries or death. While modeling studies 
have suggested that hydrodynamic forces pulling whales toward the 
vessel hull increase with increasing speed (Clyne, 1999; Knowlton et 
al., 1995), this is inconsistent with Silber et al. (2010), which 
demonstrated that there is no such relationship (i.e., hydrodynamic 
forces are independent of speed).
    In a separate study, Vanderlaan and Taggart (2007) analyzed the 
probability of lethal mortality of large whales at a given speed, 
showing that the greatest rate of change in the probability of a lethal 
injury to a large whale as a function of vessel speed occurs between 
8.6 and 15 kn (17.26 mph). The chances of a lethal injury decline from 
approximately 80 percent at 15 kn to approximately 20 percent at 8.6 kn 
(9.9 mph). At speeds below 11.8 kn (13.58 mph), the chances of lethal 
injury drop below 50 percent, while the probability asymptotically 
increases toward 100 percent above 15 kn (17.26 mph).
    The Jensen and Silber (2003) report notes that the Large Whale Ship 
Strike Database represents a minimum number of collisions, because the 
vast majority probably goes undetected or unreported. In contrast, the 
project's personnel are likely to detect any strike that does occur 
because of the required personnel training and lookouts, along with the 
inclusion of Protected Species Observers (as described in the Proposed 
Mitigation section), and they are required to report all ship strikes 
involving marine mammals.
    There are no known vessel strikes of marine mammals by any offshore 
wind energy vessel in the U.S. Given the extensive mitigation and 
monitoring measures (see the Proposed Mitigation and Proposed 
Monitoring and Reporting section) that would be required of Atlantic 
Shores, NMFS believes that a vessel strike is not likely to occur.

Potential Effects to Marine Mammal Habitat

    Atlantic Shores' proposed activities could potentially affect 
marine mammal habitat through the introduction of impacts to the prey 
species of marine mammals (through noise, oceanographic processes, or 
reef effects), acoustic habitat (sound in the water column), water 
quality, and biologically important habitat for marine mammals.
Effects on Prey
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, and zooplankton). Marine mammal prey varies by 
species, season, and location and, for some, is not well documented. 
Here, we describe studies regarding the effects of noise on known 
marine mammal prey.
    Fish utilize the soundscape and components of sound in their 
environment to perform important functions such as foraging, predator 
avoidance, mating, and spawning (e.g., Zelick and Mann, 1999; Fay, 
2009). The most likely effects on fishes exposed to loud, intermittent, 
low-frequency sounds are behavioral responses (i.e., flight or 
avoidance). Short duration, sharp sounds (such as pile driving or 
airguns) can cause overt or subtle changes in fish behavior and local 
distribution. The reaction of fish to acoustic sources depends on the 
physiological state of the fish, past exposures, motivation (e.g., 
feeding, spawning, migration), and other environmental factors. Key 
impacts to fishes may include behavioral responses, hearing damage, 
barotrauma (pressure-related injuries), and mortality. While it is 
clear that the behavioral responses of individual prey, such as 
displacement or other changes in distribution, can have direct impacts 
on the foraging success of marine mammals, the effects on marine 
mammals of individual prey that experience hearing damage, barotrauma, 
or mortality is less clear, though obviously population scale impacts 
that meaningfully reduce the amount of prey available could have more 
serious impacts.
    Fishes, like other vertebrates, have a variety of different sensory 
systems to glean information from ocean around them (Astrup and Mohl, 
1993; Astrup, 1999; Braun and Grande, 2008; Carroll et al., 2017; 
Hawkins and Johnstone, 1978; Ladich and Popper, 2004; Ladich and 
Schulz-Mirbach, 2016; Mann, 2016; Nedwell et al., 2004; Popper et al., 
2003; Popper et al., 2005). Depending on their hearing anatomy and 
peripheral sensory structures, which vary among species, fishes hear 
sounds using pressure and particle motion sensitivity capabilities and 
detect the motion of surrounding water (Fay et al., 2008) (terrestrial 
vertebrates generally only detect pressure). Most marine fishes 
primarily detect particle motion using the inner ear and lateral line 
system while some fishes possess additional morphological adaptations 
or specializations that can enhance their sensitivity to sound 
pressure, such as a gas-filled swim bladder (Braun and Grande, 2008; 
Popper and Fay, 2011).
    Hearing capabilities vary considerably between different fish 
species with data only available for just over 100 species out of the 
34,000 marine and freshwater fish species (Eschmeyer and Fong, 2016). 
In order to better understand acoustic impacts on fishes, fish hearing 
groups are defined by species that possess a similar continuum of 
anatomical features, which result in varying degrees of hearing 
sensitivity (Popper and Hastings, 2009a). There are four hearing groups 
defined for all fish species (modified from Popper et al., 2014) within 
this analysis, and they include: fishes without a swim bladder (e.g., 
flatfish, sharks, rays, etc.); fishes with a swim bladder not involved 
in hearing (e.g., salmon, cod, pollock, etc.); fishes with a swim 
bladder involved in hearing (e.g., sardines, anchovy, herring, etc.); 
and fishes with a swim bladder involved in hearing and high-frequency 
hearing (e.g., shad and menhaden). Most marine mammal fish prey species 
would not be likely to perceive or hear mid- or high-frequency sonars. 
While hearing studies have not been done on sardines and northern 
anchovies, it would not be unexpected for them to have hearing 
similarities to Pacific herring (up to 2-5 kHz) (Mann et al., 2005). 
Currently, less data are available to estimate the range of best 
sensitivity for fishes without a swim bladder.
    In terms of physiology, multiple scientific studies have documented 
a lack of mortality or physiological effects to fish from exposure to 
low- and mid-frequency sonar and other sounds (Halvorsen et al., 2012a; 
J[oslash]rgensen et al., 2005; Juanes et al., 2017; Kane et al., 2010; 
Kvadsheim and Sevaldsen, 2005; Popper et al., 2007; Popper et al., 
2016; Watwood et al., 2016). Techer et al. (2017) exposed carp in 
floating cages for up to 30 days to low-power 23 and 46 kHz source 
without any significant physiological response. Other studies

[[Page 65463]]

have documented either a lack of TTS in species whose hearing range 
cannot perceive sonar (such as Navy sonar), or for those species that 
could perceive sonar-like signals, any TTS experienced would be 
recoverable (Halvorsen et al., 2012a; Ladich and Fay, 2013; Popper and 
Hastings, 2009a, 2009b; Popper et al., 2014; Smith, 2016). Only fishes 
that have specializations that enable them to hear sounds above about 
2,500 Hz (2.5 kHz), such as herring (Halvorsen et al., 2012a; Mann et 
al., 2005; Mann, 2016; Popper et al., 2014), would have the potential 
to receive TTS or exhibit behavioral responses from exposure to mid-
frequency sonar. In addition, any sonar induced TTS to fish whose 
hearing range could perceive sonar would only occur in the narrow 
spectrum of the source (e.g., 3.5 kHz) compared to the fish's total 
hearing range (e.g., 0.01 kHz to 5 kHz).
    In terms of behavioral responses, Juanes et al. (2017) discuss the 
potential for negative impacts from anthropogenic noise on fish, but 
the author's focus was on broader based sounds, such as ship and boat 
noise sources. Watwood et al. (2016) also documented no behavioral 
responses by reef fish after exposure to mid-frequency active sonar. 
Doksaeter et al. (2009; 2012) reported no behavioral responses to mid-
frequency sonar (such as naval sonar) by Atlantic herring; 
specifically, no escape reactions (vertically or horizontally) were 
observed in free swimming herring exposed to mid-frequency sonar 
transmissions. Based on these results (Doksaeter et al., 2009; 
Doksaeter et al., 2012; Sivle et al., 2012), Sivle et al. (2014) 
created a model in order to report on the possible population-level 
effects on Atlantic herring from active sonar. The authors concluded 
that the use of sonar poses little risk to populations of herring 
regardless of season, even when the herring populations are aggregated 
and directly exposed to sonar. Finally, Bruintjes et al. (2016) 
commented that fish exposed to any short-term noise within their 
hearing range might initially startle, but would quickly return to 
normal behavior.
    Pile-driving noise during construction is of particular concern as 
the very high sound pressure levels could potentially prevent fish from 
reaching breeding or spawning sites, finding food, and acoustically 
locating mates. A playback study in West Scotland revealed that there 
was a significant movement response to the pile-driving stimulus in 
both species at relatively low received sound pressure levels (sole: 
144 to 156 dB re 1[mu]Pa Peak; cod: 140 to 161 dB re 1 [mu]Pa Peak, 
particle motion between 6.51 x 10\3\ and 8.62 x 10\4\ m/s\2\ peak) 
(Mueller-Blenkle et al., 2010). The swimming speed of the sole 
increased significantly during the playback of construction noise when 
compared to the playbacks of before and after construction. While not 
statistically significant, cod also displayed a similar behavioral 
response during before, during, and after construction playbacks. 
However, cod demonstrated a specific and significant freezing response 
at the onset and cessation of the playback recording. In both species, 
indications were present displaying directional movements away from the 
playback source. During wind farm construction in the Eastern Taiwan 
Strait, Type 1 soniferous fish chorusing showed a relatively lower 
intensity and longer duration while Type 2 chorusing exhibited higher 
intensity and no changes in its duration. Deviation from regular fish 
vocalization patterns may affect fish reproductive success, cause 
migration, augmented predation, or physiological alterations.
    Occasional behavioral reactions to activities that produce 
underwater noise sources are unlikely to cause long-term consequences 
for individual fish or populations. The most likely impact to fish from 
impact and vibratory pile driving activities at the Project Areas would 
be temporary behavioral avoidance of the area. Any behavioral avoidance 
by fish of the disturbed area would still leave significantly large 
areas of fish and marine mammal foraging habitat in the nearby 
vicinity. The duration of fish avoidance of an area after pile driving 
stops is unknown, but a rapid return to normal recruitment, 
distribution and behavior is anticipated. In general, impacts to marine 
mammal prey species are expected to be minor and temporary due to the 
expected short daily duration of individual pile driving events and the 
relatively small areas being affected.
    SPLs of sufficient strength have been known to cause fish auditory 
impairment, injury and mortality. Popper et al. (2014) found that fish 
with or without air bladders could experience TTS at 186 dB 
SELcum. Mortality could occur for fish without swim bladders 
at >216 dB SELcum. Those with swim bladders or at the egg or 
larvae life stage, mortality was possible at >203 dB SELcum. 
Other studies found that 203 dB SELcum or above caused a 
physiological response in other fish species (Casper et al., 2012, 
Halvorsen et al., 2012a, Halvorsen et al., 2012b, Casper et al., 2013a; 
Casper et al., 2013b). However, in most fish species, hair cells in the 
ear continuously regenerate and loss of auditory function likely is 
restored when damaged cells are replaced with new cells. Halvorsen et 
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours 
for one species. Impacts would be most severe when the individual fish 
is close to the source and when the duration of exposure is long. 
Injury caused by barotrauma can range from slight to severe and can 
cause death, and is most likely for fish with swim bladders. Barotrauma 
injuries have been documented during controlled exposure to impact pile 
driving (Halvorsen et al., 2012b; Casper et al., 2013).
    As described in the Proposed Mitigation section below, Atlantic 
Shores would utilize a sound attenuation device which would reduce 
potential for injury to marine mammal prey. Other fish that experience 
hearing loss as a result of exposure to impulsive sound sources may 
have a reduced ability to detect relevant sounds such as predators, 
prey, or social vocalizations. However, PTS has not been known to occur 
in fishes and any hearing loss in fish may be as temporary as the 
timeframe required to repair or replace the sensory cells that were 
damaged or destroyed (Popper et al., 2005; Popper et al., 2014; Smith 
et al., 2006). It is not known if damage to auditory nerve fibers could 
occur, and if so, whether fibers would recover during this process.
    Several studies have demonstrated that airgun sounds might affect 
the distribution and behavior of some fishes, potentially impacting 
foraging opportunities or increasing energetic costs (e.g., Fewtrell 
and McCauley, 2012; Pearson et al., 1992; Skalski et al., 1992; 
Santulli et al., 1999; Paxton et al., 2017). Required soft-starts would 
allow prey and marine mammals to move away from the source prior to any 
noise levels that may physically injure prey and the use of the noise 
attenuation devices would reduce noise levels to the degree any 
mortality or injury of prey is also minimized. Use of bubble curtains, 
in addition to reducing impacts to marine mammals, for example, is a 
key mitigation measure in reducing injury and mortality of ESA-listed 
salmon on the U.S. West Coast. However, we recognize some mortality, 
physical injury and hearing impairment in marine mammal prey may occur, 
but we anticipate the amount of prey impacted in this manner is minimal 
compared to overall availability. Any behavioral responses to pile 
driving by marine mammal prey are expected to be brief. We expect that 
other impacts, such as stress or masking, would occur in fish that 
serve as marine mammal prey (Popper et al., 2019). However, those 
impacts would be limited to the

[[Page 65464]]

duration of impact pile driving and if prey were to move out the area 
in response to noise, these impacts would be minimized.
    In addition to fish, prey sources such as marine invertebrates 
could potentially be impacted by noise stressors as a result of the 
proposed activities. However, most marine invertebrates' ability to 
sense sounds is limited. Invertebrates appear to be able to detect 
sounds (Pumphrey, 1950; Frings and Frings, 1967) and are most sensitive 
to low-frequency sounds (Packard et al., 1990; Budelmann and 
Williamson, 1994; Lovell et al., 2005; Mooney et al., 2010). Data on 
response of invertebrates such as squid, another marine mammal prey 
species, to anthropogenic sound is more limited (de Soto, 2016; Sole et 
al., 2017). Data suggest that cephalopods are capable of sensing the 
particle motion of sounds and detect low frequencies up to 1-1.5 kHz, 
depending on the species, and so are likely to detect airgun noise 
(Kaifu et al., 2008; Hu et al., 2009; Mooney et al., 2010; Samson et 
al., 2014). Sole et al. (2017) reported physiological injuries to 
cuttlefish in cages placed at-sea when exposed during a controlled 
exposure experiment to low-frequency sources (315 Hz, 139 to 142 dB re 
1 [mu]Pa2 and 400 Hz, 139 to 141 dB re 1 [mu]Pa2). Fewtrell and 
McCauley (2012) reported squids maintained in cages displayed startle 
responses and behavioral changes when exposed to seismic airgun sonar 
(136-162 re 1 [mu]Pa\2\[middot]s). Jones et al. (2020) found that when 
squid (Doryteuthis pealeii) were exposed to impulse pile driving noise, 
body pattern changes, inking, jetting, and startle responses were 
observed and nearly all squid exhibited at least one response. However, 
these responses occurred primarily during the first eight impulses and 
diminished quickly, indicating potential rapid, short-term habituation.
    Cephalopods have a specialized sensory organ inside the head called 
a statocyst that may help an animal determine its position in space 
(orientation) and maintain balance (Budelmann, 1992). Packard et al. 
(1990) showed that cephalopods were sensitive to particle motion, not 
sound pressure, and Mooney et al. (2010) demonstrated that squid 
statocysts act as an accelerometer through which particle motion of the 
sound field can be detected. Auditory injuries (lesions occurring on 
the statocyst sensory hair cells) have been reported upon controlled 
exposure to low-frequency sounds, suggesting that cephalopods are 
particularly sensitive to low-frequency sound (Andre et al., 2011; Sole 
et al., 2013). Behavioral responses, such as inking and jetting, have 
also been reported upon exposure to low-frequency sound (McCauley et 
al., 2000; Samson et al., 2014). Squids, like most fish species, are 
likely more sensitive to low frequency sounds and may not perceive mid- 
and high-frequency sonars.
    With regard to potential impacts on zooplankton, McCauley et al. 
(2017) found that exposure to airgun noise resulted in significant 
depletion for more than half the taxa present and that there were two 
to three times more dead zooplankton after airgun exposure compared 
with controls for all taxa, within 1 km of the airguns. However, the 
authors also stated that in order to have significant impacts on r-
selected species (i.e., those with high growth rates and that produce 
many offspring) such as plankton, the spatial or temporal scale of 
impact must be large in comparison with the ecosystem concerned, and it 
is possible that the findings reflect avoidance by zooplankton rather 
than mortality (McCauley et al., 2017). In addition, the results of 
this study are inconsistent with a large body of research that 
generally finds limited spatial and temporal impacts to zooplankton as 
a result of exposure to airgun noise (e.g., Dalen and Knutsen, 1987; 
Payne, 2004; Stanley et al., 2011). Most prior research on this topic, 
which has focused on relatively small spatial scales, has showed 
minimal effects (e.g., Kostyuchenko, 1973; Booman et al., 1996; 
S[aelig]tre and Ona, 1996; Pearson et al., 1994; Bolle et al., 2012).
    A modeling exercise was conducted as a follow-up to the McCauley et 
al. (2017) study (as recommended by McCauley et al.), in order to 
assess the potential for impacts on ocean ecosystem dynamics and 
zooplankton population dynamics (Richardson et al., 2017). Richardson 
et al. (2017) found that a full-scale airgun survey would impact 
copepod abundance within the survey area, but that effects at a 
regional scale were minimal (2 percent decline in abundance within 150 
km of the survey area and effects not discernible over the full 
region). The authors also found that recovery within the survey area 
would be relatively quick (3 days following survey completion), and 
suggest that the quick recovery was due to the fast growth rates of 
zooplankton, and the dispersal and mixing of zooplankton from both 
inside and outside of the impacted region. The authors also suggest 
that surveys in areas with more dynamic ocean circulation in comparison 
with the study region and/or with deeper waters (i.e., typical offshore 
wind locations) would have less net impact on zooplankton.
    Notably, a recently described study produced results inconsistent 
with those of McCauley et al. (2017). Researchers conducted a field and 
laboratory study to assess if exposure to airgun noise affects 
mortality, predator escape response, or gene expression of the copepod 
Calanus finmarchicus (Fields et al., 2019). Immediate mortality of 
copepods was significantly higher, relative to controls, at distances 
of 5 m or less from the airguns. Mortality 1 week after the airgun 
blast was significantly higher in the copepods placed 10 m from the 
airgun but was not significantly different from the controls at a 
distance of 20 m from the airgun. The increase in mortality, relative 
to controls, did not exceed 30 percent at any distance from the airgun. 
Moreover, the authors caution that even this higher mortality in the 
immediate vicinity of the airguns may be more pronounced than what 
would be observed in free-swimming animals due to increased flow speed 
of fluid inside bags containing the experimental animals. There were no 
sub-lethal effects on the escape performance or the sensory threshold 
needed to initiate an escape response at any of the distances from the 
airgun that were tested. Whereas McCauley et al. (2017) reported an SEL 
of 156 dB at a range of 509-658 m, with zooplankton mortality observed 
at that range, Fields et al. (2019) reported an SEL of 186 dB at a 
range of 25 m, with no reported mortality at that distance.
    The presence of large numbers of turbines has been shown to impact 
meso- and sub-meso-scale water column circulation, which can affect the 
density, distribution, and energy content of zooplankton and thereby, 
their availability as marine mammal prey. Topside, atmospheric wakes 
result in wind speed reductions influencing upwelling and downwelling 
in the ocean while underwater structures such as WTG, OSS, and Met 
tower foundations may cause turbulent current wakes, which impact 
circulation, stratification, mixing, and sediment resuspension (Daewel 
et al., 2022). Overall, the presence and operation of structures such 
as wind turbines are, in general, likely to result in local and broader 
oceanographic effects in the marine environment and may disrupt marine 
mammal prey, such as dense aggregations and distribution of zooplankton 
through altering the strength of tidal currents and associated fronts, 
changes in stratification, primary production, the degree of mixing, 
and stratification in the water column (Chen et al., 2021; Johnson et 
al., 2021;

[[Page 65465]]

Christiansen et al., 2022; Dorrell et al., 2022). However, the scale of 
impacts is difficult to predict and may vary from meters to hundreds of 
meters for local individual turbine impacts (Schultze et al., 2020) to 
large-scale dipoles of surface elevation changes stretching hundreds of 
kilometers (Christiansen et al., 2022).
    Atlantic Shores intends to install up to 200 WTGs, up to 10 OSSs, 
and 1 Met Tower. Turbine operations would commence in 2028 (Project 1) 
and 2029 (Project 2), with all turbines being operational in 2029. As 
described above, there is scientific uncertainty around the scale of 
oceanographic impacts (meters to kilometers) associated with turbine 
operation. The project is located offshore of New Jersey, within a 
migratory BIA for North Atlantic right whales. Although right whales 
and humpback whales have been observed feeding off the New Jersey coast 
(Whitt et al., 2013; Whitt et al., 2015), the majority of whales are 
expected to be moving through the area. In addition, seasonal pile 
driving restrictions from January through April will reduce the 
potential for overlap between construction activities and any foraging 
whales.
    Potential impacts on prey could impact the distribution of marine 
mammals within the Project Area, potentially necessitating additional 
energy expenditure to find and capture prey, but at the temporal and 
spatial scales anticipated for this activity are not expected to impact 
the reproduction or survival of any individual marine mammals. Although 
studies assessing the impacts of offshore wind development on marine 
mammals are limited, the repopulation of wind energy areas by harbor 
porpoises (Brandt et al., 2016; Lindeboom et al., 2011) and harbor 
seals (Lindeboom et al., 2011; Russell et al., 2016) following the 
installation of wind turbines are promising. Overall, any impacts to 
marine mammal foraging capabilities due to effects on prey aggregation 
from the turbine presence and operation during the effective period of 
the proposed rule is likely to be limited. As the nearest North 
Atlantic right whale feeding BIA and humpback whale feeding BIA are 
approximately 419.1 km away from the proposed Project Area, these areas 
would likely be unaffected by the project's operation.
    In general, impacts to marine mammal prey species are expected to 
be relatively minor and temporary due to the expected short daily 
duration of individual pile driving events and the relatively small 
areas being affected. NMFS does not expect HRG acoustic sources to 
impact fish and most sources are likely outside the hearing range of 
the primary prey species in the Project Area. Prey species exposed to 
sound might move away from the sound source, experience TTS, experience 
masking of biologically relevant sounds, or show no obvious direct 
effects. Overall, however, the combined impacts of sound exposure, 
water quality, and oceanographic impacts on marine mammal habitat 
resulting from the proposed activities would not be expected to have 
measurable effects on populations of marine mammal prey species.
Reef Effects
    The presence of monopile foundations, scour protection, and cable 
protection will result in a conversion of the existing sandy bottom 
habitat to a hard bottom habitat with areas of vertical structural 
relief. This could potentially alter the existing habitat by creating 
an ``artificial reef effect'' that results in colonization by 
assemblages of both sessile and mobile animals within the new hard-
bottom habitat (Wilhelmsson et al., 2006; Reubens et al., 2013; 
Bergstr[ouml]m et al., 2014; Coates et al., 2014). This colonization by 
marine species, especially hard-substrate preferring species, can 
result in changes to the diversity, composition, and/or biomass of the 
area thereby impacting the trophic composition of the site (Wilhelmsson 
et al., 2010, Krone et al., 2013; Bergstr[ouml]m et al., 2014, Hooper 
et al., 2017; Raoux et al., 2017; Harrison and Rousseau, 2020; Taormina 
et al., 2020; Buyse et al., 2022a; ter Hofstede et al., 2022).
    Artificial structures can create increased habitat heterogeneity 
important for species diversity and density (Langhamer, 2012). The WTG 
and OSS foundations will extend through the water column, which may 
serve to increase settlement of meroplankton or planktonic larvae on 
the structures in both the pelagic and benthic zones (Boehlert and 
Gill, 2010). Fish and invertebrate species are also likely to aggregate 
around the foundations and scour protection which could provide 
increased prey availability and structural habitat (Boehlert and Gill, 
2010; Bonar et al., 2015). Further, instances of species previously 
unknown, rare, or nonindigenous to an area have been documented at 
artificial structures, changing the composition of the food web and 
possibly the attractability of the area to new or existing predators 
(Adams et al., 2014; de Mesel, 2015; Bishop et al., 2017; Hooper et 
al., 2017; Raoux et al., 2017; van Hal et al., 2017; Degraer et al., 
2020; Fernandez-Betelu et al., 2022). Notably, there are examples of 
these sites becoming dominated by marine mammal prey species, such as 
filter-feeding species and suspension-feeding crustaceans (Andersson 
and [Ouml]hman, 2010; Slavik et al., 2019; Hutchison et al., 2020; Pezy 
et al., 2020; Mavraki et al., 2022).
    Numerous studies have documented significantly higher fish 
concentrations including species like cod and pouting (Trisopterus 
luscus), flounder (Platichthys flesus), eelpout (Zoarces viviparus), 
and eel (Anguilla anguilla) near in-water structures than in 
surrounding soft bottom habitat (Langhamer and Wilhelmsson, 2009; 
Bergstr[ouml]m et al., 2013; Reubens et al., 2013). In the German Bight 
portion of the North Sea, fish were most densely congregated near the 
anchorages of jacket foundations, and the structures extending through 
the water column were thought to make it more likely that juvenile or 
larval fish encounter and settle on them (Rhode Island Coastal 
Resources Management Council (RI-CRMC), 2010; Krone et al., 2013). In 
addition, fish can take advantage of the shelter provided by these 
structures while also being exposed to stronger currents created by the 
structures, which generate increased feeding opportunities and 
decreased potential for predation (Wilhelmsson et al., 2006). The 
presence of the foundations and resulting fish aggregations around the 
foundations is expected to be a long-term habitat impact, but the 
increase in prey availability could potentially be beneficial for some 
marine mammals.
    The most likely impact to marine mammal habitat from the project is 
expected to be from pile driving, which may affect marine mammal food 
sources such as forage fish and could also cause acoustic habitat 
effects on marine mammal prey (e.g., fish).
Water Quality
    Temporary and localized reduction in water quality will occur as a 
result of in-water construction activities. Most of this effect will 
occur during pile driving and installation of the cables, including 
auxiliary work such as dredging and scour placement. These activities 
will disturb bottom sediments and may cause a temporary increase in 
suspended sediment in the Project Area. Currents should quickly 
dissipate any raised total suspended sediment (TSS) levels, and levels 
should return to background levels once the project activities in that 
area cease. No direct impacts on marine mammals is anticipated due to 
increased TSS and turbidity; however, turbidity within the

[[Page 65466]]

water column has the potential to reduce the level of oxygen in the 
water and irritate the gills of prey fish species in the proposed 
Project Area. However, turbidity plumes associated with the project 
would be temporary and localized, and fish in the proposed Project Area 
would be able to move away from and avoid the areas where plumes may 
occur. Therefore, it is expected that the impacts on prey fish species 
from turbidity, and therefore on marine mammals, would be minimal and 
temporary.
    Equipment used by Atlantic Shores within the Project Area, 
including ships and other marine vessels, potentially aircrafts, and 
other equipment, are also potential sources of by-products (e.g., 
hydrocarbons, particulate matter, heavy metals). All equipment is 
properly maintained in accordance with applicable legal requirements. 
All such operating equipment meets Federal water quality standards, 
where applicable. Given these requirements, impacts to water quality 
are expected to be minimal.
Acoustic Habitat
    Acoustic habitat is the soundscape, which encompasses all of the 
sound present in a particular location and time, as a whole when 
considered from the perspective of the animals experiencing it. Animals 
produce sound for, or listen for sounds produced by, conspecifics 
(communication during feeding, mating, and other social activities), 
other animals (finding prey or avoiding predators), and the physical 
environment (finding suitable habitats, navigating). Together, sounds 
made by animals and the geophysical environment (e.g., produced by 
earthquakes, lightning, wind, rain, waves) make up the natural 
contributions to the total acoustics of a place. These acoustic 
conditions, termed acoustic habitat, are one attribute of an animal's 
total habitat.
    Soundscapes are also defined by, and acoustic habitat influenced 
by, the total contribution of anthropogenic sound. This may include 
incidental emissions from sources such as vessel traffic or may be 
intentionally introduced to the marine environment for data acquisition 
purposes (as in the use of airgun arrays) or for Navy training and 
testing purposes (as in the use of sonar and explosives and other 
acoustic sources). Anthropogenic noise varies widely in its frequency, 
content, duration, and loudness and these characteristics greatly 
influence the potential habitat-mediated effects to marine mammals 
(please also see the previous discussion on Masking), which may range 
from local effects for brief periods of time to chronic effects over 
large areas and for long durations. Depending on the extent of effects 
to habitat, animals may alter their communications signals (thereby 
potentially expending additional energy) or miss acoustic cues (either 
conspecific or adventitious). Problems arising from a failure to detect 
cues are more likely to occur when noise stimuli are chronic and 
overlap with biologically relevant cues used for communication, 
orientation, and predator/prey detection (Francis and Barber, 2013). 
For more detail on these concepts, see Barber et al., 2009; Pijanowski 
et al., 2011; Francis and Barber, 2013; Lillis et al., 2014.
    The term ``listening area'' refers to the region of ocean over 
which sources of sound can be detected by an animal at the center of 
the space. Loss of communication space concerns the area over which a 
specific animal signal, used to communicate with conspecifics in 
biologically important contexts (e.g., foraging, mating), can be heard, 
in noisier relative to quieter conditions (Clark et al., 2009). Lost 
listening area concerns the more generalized contraction of the range 
over which animals would be able to detect a variety of signals of 
biological importance, including eavesdropping on predators and prey 
(Barber et al., 2009). Such metrics do not, in and of themselves, 
document fitness consequences for the marine animals that live in 
chronically noisy environments. Long-term population-level consequences 
mediated through changes in the ultimate survival and reproductive 
success of individuals are difficult to study, and particularly so 
underwater. However, it is increasingly well documented that aquatic 
species rely on qualities of natural acoustic habitats, with 
researchers quantifying reduced detection of important ecological cues 
(e.g., Francis and Barber, 2013; Slabbekoorn et al., 2010) as well as 
survivorship consequences in several species (e.g., Simpson et al., 
2014; Nedelec et al., 2014).
    Sound produced from construction activities in the Project Area 
would be temporary and transitory. The sounds produced during 
construction activities may be widely dispersed or concentrated in 
small areas for varying periods. Any anthropogenic noise attributed to 
construction activities in the Project Area would be temporary and the 
affected area would be expected to immediately return to the original 
state when these activities cease.
    Although this proposed rulemaking primarily covers the noise 
produced from construction activities relevant to this offshore wind 
facility, operational noise was a consideration in NMFS' analysis of 
the project, as all turbines would become operational within the 
effective dates of the rule (if issued). It is expected that all 
turbines would be operational by 2029. Once operational, offshore wind 
turbines are known to produce continuous, non-impulsive underwater 
noise, primarily below 1 kHz (Tougaard et al., 2020; St[ouml]ber and 
Thomsen, 2021).
    In both newer, quieter, direct-drive systems (such as what has been 
proposed for use in the project) and older generation, geared turbine 
designs, recent scientific studies indicate that operational noise from 
turbines is on the order of 110 to 125 dB re 1 [mu]Pa root-mean-square 
sound pressure level (SPLrms) at an approximate distance of 
50 m (Tougaard et al., 2020). Recent measurements of operational sound 
generated from wind turbines (direct drive, 6 MW, jacket piles) at 
Block Island Wind Farm (BIWF) indicate average broadband levels of 119 
dB at 50 m from the turbine, with levels varying with wind speed (HDR, 
Inc., 2019). Interestingly, measurements from BIWF turbines showed 
operational sound had less tonal components compared to European 
measurements of turbines with gear boxes.
    Tougaard et al. (2020) further stated that the operational noise 
produced by WTGs is static in nature and lower than noise produced by 
passing ships. This is a noise source in this region to which marine 
mammals are likely already habituated. Furthermore, operational noise 
levels are likely lower than those ambient levels already present in 
active shipping lanes, such that operational noise would likely only be 
detected in very close proximity to the WTG (Thomsen et al., 2006; 
Tougaard et al., 2020). Similarly, recent measurements from a wind farm 
(3 MW turbines) in China found at above 300 Hz, turbines produced sound 
that was similar to background levels (Zhang et al., 2021). Other 
studies by Jansen and de Jong (2016) and Tougaard et al. (2009) 
determined that, while marine mammals would be able to detect 
operational noise from offshore wind farms (again, based on older 2 MW 
models) for several kilometers, they expected no significant impacts on 
individual survival, population viability, marine mammal distribution, 
or the behavior of the animals considered in their study (harbor 
porpoises and harbor seals).
    More recently, St[ouml]ber and Thomsen (2021) used monitoring data 
and modeling to estimate noise generated by more recently developed, 
larger (10

[[Page 65467]]

MW) direct-drive WTGs. Their findings, similar to Tougaard et al. 
(2020), demonstrate that there is a trend that operational noise 
increases with turbine size. Their study predicts broadband source 
levels could exceed 170 dB SPLrms for a 10 MW WTG. However, 
those noise levels were generated based on geared turbines; newer 
turbines operate with direct drive technology. The shift from using 
gear boxes to direct drive technology is expected to reduce the levels 
by 10 dB. The findings in the St[ouml]ber and Thomsen (2021) study have 
not been experimentally validated, though the modeling (using largely 
geared turbines) performed by Tougaard et al. (2020) yields similar 
results for a hypothetical 10 MW WTG. Overall, noise from operating 
turbines would raise ambient noise levels in the immediate vicinity of 
the turbines. However, the spatial extent of increased noise levels 
would be limited. NMFS proposes to require Atlantic Shores to measure 
operational noise levels.
    In addition, Madsen et al. (2006b) found the intensity of noise 
generated by operational wind turbines to be much less than the noises 
present during construction, although this observation was based on a 
single turbine with a maximum power of 2 MW. Other studies by Jansen 
and de Jong (2016) and Tougaard et al. (2009) determined that, while 
marine mammals would be able to detect operational noise from offshore 
wind farms (again, based on older 2 MW models) for several thousand 
kilometer, they expected no significant impacts on individual survival, 
population viability, marine mammal distribution, or the behavior of 
the animals considered in their study (harbor porpoises and harbor 
seals).
    More recently, St[ouml]ber and Thomsen (2021) used monitoring data 
and modeling to estimate noise generated by more recently developed, 
larger (10 MW) direct-drive WTGs. Their findings, similar to Tougaard 
et al. (2020), demonstrate that there is a trend that operational noise 
increases with turbine size. Their study found noise levels could 
exceed 170 (to 177 dB re 1 [mu]Pa SPLrms for a 10 MW WTG). 
However, those noise levels were generated by geared turbines, but 
newer turbines operate with direct drive technology. The shift from 
using gear boxes to direct drive technology is expected to reduce the 
sound level by 10 dB. The findings in the St[ouml]ber and Thomsen 
(2021) study have not been validated. As Atlantic Shores did not 
request, and NMFS is not proposing to authorize, take incidental to 
operational noise from WTGs, the topic is not discussed or analyzed 
further herein.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization under the regulations, which will inform 
both NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment) 
or has the potential to disturb a marine mammal or marine mammal stock 
in the wild by causing disruption of behavioral patterns, including, 
but not limited to, migration, breathing, nursing, breeding, feeding, 
or sheltering (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as noise 
from pile driving and HRG surveys could result in behavioral 
disturbance of marine mammals that qualifies as take. Impacts such as 
masking and TTS can contribute to the disruption of behavioral patterns 
and are accounted for within those requested takes. There is also some 
potential for auditory injury (Level A harassment) of 9 species of 
marine mammals (including 9 stocks), not including the North Atlantic 
right whale. However, the amount of Level A harassment that Atlantic 
Shores requested, and NMFS proposes to authorize, is low. While NMFS is 
proposing to authorize Level A harassment and Level B harassment, the 
proposed mitigation and monitoring measures are expected to minimize 
the amount and severity of such taking to the extent practicable (see 
Proposed Mitigation and Proposed Monitoring and Reporting).
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized incidental to the specified 
activities. Even without mitigation, both pile driving activities and 
HRG surveys would not have the potential to directly cause marine 
mammal mortality or serious injury. While, in general, mortality and 
serious injury of marine mammals could occur from vessel strikes, the 
mitigation and monitoring measures contained within this proposed rule 
are expected to lower the risk of vessel strike such that the risk is 
discountable (see Proposed Mitigation section). Atlantic Shores has not 
requested, and NMFS is not authorizing, take by vessel strike. No other 
activities have the potential to result in mortality or serious injury.
    For acoustic impacts, we estimate take by considering: (1) acoustic 
thresholds above which the best available science indicates marine 
mammals will be behaviorally harassed or incur some degree of permanent 
hearing impairment; (2) the area or volume of water that will be 
ensonified above these levels in a day; (3) the density or occurrence 
of marine mammals within these ensonified areas; and, (4) the number of 
days of activities. We note that while these factors can contribute to 
a basic calculation to provide an initial prediction of potential 
takes, additional information that can qualitatively inform take 
estimates is also sometimes available (e.g., previous monitoring 
results or average group size). Below, we describe the factors 
considered here in more detail and present the proposed take estimates.
    As described below, there are three primary methods (i.e., density-
based, PSO-based, or mean group size) available to predict the amount 
of harassment that may occur incidental to the proposed project. 
Alternatively, for each species and activity, the largest value 
resulting from the three take estimation methods described below was 
carried forward as the amount of requested take, by Level B harassment. 
The amount of requested take, by Level A harassment, reflects the 
density-based exposure estimates and, for some species and activities, 
consideration of other data such as mean group size.
    Below, we describe NMFS' acoustic thresholds, acoustic and exposure 
modeling methodologies, marine mammal density calculation methodology, 
occurrence information, and the modeling and methodologies applied to 
estimate take for each specified activity. NMFS has carefully 
considered all information and analysis presented by Atlantic Shores, 
as well as all other applicable information and, based on the best 
available science, concurs that Atlantic Shores' proposed take 
estimates of the types and amounts of take for each species and stock 
are reasonable, with some minor adjustments, and is proposing to 
authorize the adjusted amount requested. NMFS notes the take estimates 
described herein for foundation installation are substantially 
conservative as the estimates do not reflect the implementation of 
clearance and shutdown zones for any marine mammal species or stock. In 
addition, our estimates for Project 2 assume pin pile buildouts where 
requested; however, Atlantic Shores may use monopiles instead in 
certain instances,

[[Page 65468]]

which will result in generally lesser take.

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 (Level B 
harassment) or to incur PTS of some degree (Level A harassment). A 
summary of all NMFS' thresholds can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Level B Harassment
    Though significantly driven by received level, the onset of 
behavioral disturbance from anthropogenic noise exposure is also 
informed to varying degrees by other factors related to the source or 
exposure context (e.g., frequency, predictability, duty cycle, duration 
of the exposure, signal-to-noise ratio, distance to the source, ambient 
noise, and the receiving animal's hearing, motivation, experience, 
demography, behavior at time of exposure, life stage, depth) and can be 
difficult to predict (e.g., Southall et al., 2007, 2021; Ellison et 
al., 2012). Based on what the available science indicates and the 
practical need to use a threshold based on a metric that is both 
predictable and measurable for most activities, NMFS typically uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment.
    NMFS generally predicts that marine mammals are likely to be 
behaviorally harassed in a manner considered to be Level B harassment 
when exposed to underwater anthropogenic noise above the received sound 
pressure levels (SPLRMS) of 120 dB for continuous sources 
(e.g., vibratory pile-driving, drilling) and above the received 
SPLRMS 160 dB for non-explosive impulsive or intermittent 
sources (e.g., impact pile driving, scientific sonar). Generally 
speaking, Level B harassment take estimates based on these behavioral 
harassment thresholds are expected to include any likely takes by TTS 
as, in most cases, the likelihood of TTS occurs at distances from the 
source less than those at which behavioral harassment is likely. TTS of 
a sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (conspecific communication, predators, prey) may 
result in changes in behavioral patterns that would not otherwise 
occur.
    The proposed project's construction activities include the use of 
continuous (e.g., vibratory pile driving) and impulsive or intermittent 
sources (e.g., impact pile driving, some HRG acoustic sources); 
therefore, the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are 
applicable to our analysis.
Level A Harassment
    NMFS' Technical Guidance for Assessing the Effects of Anthropogenic 
Sound on Marine Mammal Hearing (Version 2.0; Technical Guidance) (NMFS, 
2018) identifies dual criteria to assess auditory injury (Level A 
harassment) to five different marine mammal groups (based on hearing 
sensitivity) as a result of exposure to noise from two different types 
of sources (impulsive or non-impulsive). As dual metrics, NMFS 
considers onset of PTS (Level A harassment) to have occurred when 
either one of the two metrics is exceeded (i.e., metric resulting in 
the largest isopleth). As described above, the proposed activities 
include the use of both impulsive and non-impulsive sources. NMFS' 
thresholds identifying the onset of PTS are provided in Table 6. 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 6--Permanent Threshold Shift (PTS) Onset Thresholds *
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lp,0-pk,flat: 219   Cell 2: LE,p,LF,24h: 199 dB.
                                          dB; LE,p,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lp,0-pk,flat: 230   Cell 4: LE,p,MF,24h: 198 dB.
                                          dB; LE,p,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lp,0-pk,flat: 202   Cell 6: LE,p,HF,24h: 173 dB.
                                          dB; LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lp,0-pk.flat: 218   Cell 8: LE,p,PW,24h: 201 dB.
                                          dB; LE,p,PW,24h: 185 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
  onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
  associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (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.

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

Acoustic and Exposure Modeling

    The predominant underwater noise associated with the construction 
of the project results from impact and vibratory pile driving. Atlantic 
Shores employed JASCO Applied Sciences (USA) Inc. (JASCO) to conduct 
acoustic modeling to better understand sound fields produced during 
these activities (Weirathmueller et al., 2022). The basic

[[Page 65469]]

modeling approach is to characterize the sounds produced by the source, 
and determine how the sounds propagate within the surrounding water 
column. For impact pile driving, JASCO conducted sophisticated source 
and propagation modeling (as described below). For vibratory pile 
driving activities, JASCO applied in situ data to estimate source 
levels and applied more simple propagation modeling. To assess the 
potential for take from impact pile driving, JASCO also conducted 
animal movement modeling to estimate exposures; JASCO estimated 
species-specific exposure probability by considering the range- and 
depth-dependent sound fields in relation to animal movement in 
simulated representative construction scenarios. To assess the 
potential for take from vibratory pile driving, exposure modeling was 
not conducted; instead, a density-based estimation approach was used. 
More details on these acoustic source modeling, propagation modeling, 
and exposure modeling methods are described below.
    JASCO's Pile Driving Source Model (PDSM), a physical model of pile 
vibration and near-field sound radiation (MacGillivray, 2014), was used 
in conjunction with the GRL, Inc Wave Equation Analysis of Pile Driving 
(GRLWEAP) 2010 wave equation model (Pile Dynamics, 2010) to predict 
representative source levels associated with impact pile driving 
activities (WTG, OSS, and Met Tower foundation installation). The PDSM 
physical model computes the underwater vibration and sound radiation of 
a pile by solving the theoretical equations of motion for axial and 
radial vibrations of a cylindrical shell. This model is used to 
estimate the energy distribution per frequency (source spectrum) at a 
close distance from the source (10 m). Piles are modeled as a vertical 
installation using a finite-difference structural model of pile 
vibration based on thin-shell theory. To model the sound emissions from 
the piles, the force of the pile driving hammers also had to be 
modeled. The force at the top of each monopile and jacket foundation 
pile was computed using the GRLWEAP 2010 wave equation model, which 
includes a large database of simulated hammers. The forcing functions 
from GRLWEAP were used as inputs to the finite difference model to 
compute the resulting pile vibrations (see Figures 8-10 in Appendix B 
of Atlantic Shores' ITA application for the computed forcing 
functions). The sound radiating from the pile itself was simulated 
using a vertical array of discrete point sources. These models account 
for several parameters that describe the operation--pile type, 
material, size, and length--the pile driving equipment, and approximate 
pile penetration depth. The model assumed direct contact between the 
representative hammers, helmets, and piles (i.e., no cushioning 
material). For both jacket and monopile foundation models, the piles 
are assumed to be vertical and driven to a penetration depth of 70 m 
(230 ft) and 60 m (197 ft), respectively.
    Atlantic Shores is required to employ noise abatement systems 
(NAS), also known as noise attenuation systems, during all foundation 
installation (i.e., impact pile driving) activities to reduce the sound 
pressure levels that are transmitted through the water in an effort to 
reduce ranges to acoustic thresholds and minimize any acoustic impacts 
resulting from the activities. Atlantic Shores is required to use 
whatever technology is necessary 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 
Helmholtz resonator), as well as the adjustment of operational 
protocols to minimize noise levels. Other systems that could be 
implemented include an evacuated sleeve system (e.g., IHC-Noise 
Mitigation System (NMS)), or encapsulated bubble systems (e.g., 
HydroSound Dampers (HSD)) to reduce sound levels. Hence, hypothetical 
broadband attenuation levels of 0 dB, 6 dB, 10 dB, and 15 dB were 
incorporated into the foundation source models to gauge effects on the 
ranges to thresholds given these levels of attenuation (Appendix B of 
the ITA application). Although four attenuation levels were evaluated, 
Atlantic Shores and NMFS anticipate that the noise attenuation system 
ultimately chosen will be capable of reliably reducing source levels by 
10 dB; therefore, this assumption was carried forward in this analysis 
for monopile and jacket foundation pile driving installation. See the 
Proposed Mitigation section for more information regarding the 
justification for the 10-dB assumption.
    In addition to considering noise abatement, the amount of sound 
generated during pile driving varies with the energy required to drive 
piles to a desired depth and depends on the sediment resistance 
encountered. Sediment types with greater resistance require hammers 
that deliver higher energy strikes and/or an increased number of 
strikes relative to installations in softer sediment. Maximum sound 
levels usually occur during the last stage of impact pile driving where 
the greatest resistance is encountered (Betke, 2008). Key modeling 
assumptions for the monopiles and pin piles are listed in Table 7 
(additional modeling details and input parameters can be found in Table 
B-1 in Appendix B of Atlantic Shores' ITA application). Hammer energy 
schedules for monopiles (12-m and 15-m) and pin piles (5-m) are 
provided in Table 8, respectively. Decidecade spectral source levels 
for each pile type, hammer energy, and modeled location for summer 
sound speed profiles can be found in Appendix B of Atlantic Shores' ITA 
application (see Figures 11 to 13 in the application).

                           Table 7--Key Piling Assumptions Used in the Source Modeling
----------------------------------------------------------------------------------------------------------------
                                        Maximum impact                                      Seabed
           Foundation type               hammer energy    Wall thickness    Pile length   penetration    Number
                                             (kJ)              (mm)             (m)        depth (m)    per day
----------------------------------------------------------------------------------------------------------------
12-m Monopile Foundation.............             4,400               130           101            60          2
15-m Monopile Foundation.............             4,400               162           105            60          2
5-m Pin Pile for Jacket Foundation...             2,500                72            76            70          4
----------------------------------------------------------------------------------------------------------------


[[Page 65470]]


              Table 8--Hammer Energy Schedules for Monopiles and Pin Piles Used in Source Modeling
----------------------------------------------------------------------------------------------------------------
                                                                                      Pile
Modeled installation scenario    Hammer model     Energy level    Strike count     penetration     Strike rate
                                                      (kJ)                          range (m)     (strikes/min)
----------------------------------------------------------------------------------------------------------------
12-m Monopile Foundation.....  Menck MHU 4400S.           1,400             750               5               30
                                                          1,800           1,250               5
                                                          2,000           4,650              15
                                                          3,000           4,200              15
                                                          4,400           1,500               5
                                                ------------------------------------------------
                                                           Total         12,350              45
----------------------------------------------------------------------------------------------------------------
15-m Monopile Foundation.....  Menck MHU 4400S.             480           1,438               8               30
                                                            800           1,217               3
                                                          1,600           1,472               4
                                                          2,500           2,200               5
                                                          3,000           4,200              10
                                                          4,000           2,880               9
                                                          4,400           1,980               6
                                                ------------------------------------------------
                                                           Total         15,387              45
----------------------------------------------------------------------------------------------------------------
5-m Pin Piles for Jacket       IHC S-2500......           1,200             700              10               30
 Foundation.
                                                          1,400           2,200              20
                                                          1,800           2,100              15
                                                          2,500           1,750              10
                                                ------------------------------------------------
                                                           Total          6,750              55
----------------------------------------------------------------------------------------------------------------

    Within these assumptions, jacket foundations were assumed to be 
pre- and post-piled. Pre-piled means that the jacket structure is set 
on pre-installed piles while post-piling means that that jacket 
structure is placed on the seafloor and the piles are subsequently 
driven through guides located at the base of each jacket leg. Due to 
these installation approaches, the jacket structure itself radiates 
sound, which needs to be accounted for in the modeling. Because of 
this, JASCO estimated a larger broadband sound level for the piles (+2 
dB) for the post-piling scenario.
    After calculating source levels, Atlantic Shores used propagation 
models to estimate distances to NMFS' harassment thresholds. The 
propagation of sound through the environment can be modeled by 
predicting the acoustic propagation loss--a measure, in decibels, of 
the decrease in sound level between a source and a receiver some 
distance away. Geometric spreading of acoustic waves is the predominant 
way by which propagation loss occurs. Propagation loss also happens 
when the sound is absorbed and scattered by the seawater, and absorbed, 
scattered, and reflected at the water surface and within the seabed. 
Propagation loss depends on the acoustic properties of the ocean and 
seabed and its value changes with frequency. Acoustic propagation 
modeling for impact pile driving applied JASCO's Marine Operations 
Noise Model (MONM) and Full Wave Range Dependent Acoustic Model (FWRAM) 
that combine the outputs of the source model with the spatial and 
temporal environmental context (e.g., location, oceanographic 
conditions, and seabed type) to estimate sound fields. The lower 
frequency bands were modeled using MONM-RAM, which is based on the 
parabolic equation method of acoustic propagation modeling. For higher 
frequencies, additional losses resulting from absorption were added to 
the transmission loss model. See Appendix B and D in Atlantic Shores' 
application (and supplemental memos) for more detailed descriptions of 
JASCO's propagation models.
    Sounds produced by installation of the proposed monopiles and pin 
piles were modeled at two sites (L01 and L02) for the 12-m and 15-m 
diameter monopile foundations and for the 5-m pin piles for jacket 
foundations--L01 in the southern section of the Lease Area in 36.1 m 
(118.4 ft) of water depth and L02 in the northeastern section of the 
Lease Area in 28.1 m (92.2 ft) of water depth. Modeling locations are 
shown in Figure 2 of Appendix B in the ITA application. For temporary 
cofferdams, simpler propagation modeling using in-situ data was 
performed using information from Illingworth & Rodkin (2017), which 
measured the sound exposure level at 10 m (32.8 ft) distance from the 
pile for sheet piles using a vibratory hammer. JASCO used the source 
spectrum produced from this study (see Figure 2 in Appendix D, the 
revised cofferdam memo) to define the expected source characteristics 
during Atlantic Shores' cofferdam installation and removal activities. 
JASCO's model, MONM, was again used to predict the SEL and SPL fields 
at representative locations near the proposed cofferdam locations, 
considering the influences of bathymetry, seabed properties, water 
sound speed, and water attenuation. Sheet piles were represented as a 
point source at a depth of 2 m (6.56 ft).
    Due to seasonal changes in the water column, sound propagation is 
likely to differ at different times of the year. The speed of sound in 
seawater depends on the temperature T (degree Celsius), salinity S 
(parts per thousand (ppt)), and depth D (m) and can be described using 
sound speed profiles. Oftentimes, a homogeneous or mixed layer of 
constant velocity is present in the first few meters. It corresponds to 
the mixing of surface water through surface agitation. There can also 
be other features, such as a surface channel, which corresponds to 
sound velocity increasing from the surface down. This channel is often 
due to a shallow isothermal layer appearing in winter conditions, but 
can also be caused by water that is very cold at the surface. In a 
negative sound gradient, the sound speed decreases with depth, which 
results in sound refracting downwards which may result in increased 
bottom losses with distance from the source. In a positive sound

[[Page 65471]]

gradient, as is predominantly present in the winter season, sound speed 
increases with depth and the sound is, therefore, refracted upwards, 
which can aid in long distance sound propagation. Within the Project 
Area from July through September, the average temperature of the upper 
10 m to 15 m of the water column is higher, resulting in an increased 
surface layer sound speed.
    Acoustic propagation modeling for impact pile driving foundations 
was conducted using an average sound speed profile for a summer period 
given this would be when Atlantic Shores would conduct the majority, if 
not all of its foundation installation work. Vibratory pile driving for 
cofferdams used a mean summer (June-August) and mean winter (December-
February), given the specifics described in the construction schedule. 
FWRAM computes pressure waveforms via Fourier synthesis of the modeled 
acoustic transfer function in closely spaced frequency bands. Examples 
of decidecade spectral levels for each foundation pile type, hammer 
energy, and modeled location, using average summer sound speed profile 
are provided in Weirathmueller et al. (2022). Resulting distances to 
NMFS' harassment thresholds for impact driving and vibratory driving 
cofferdams can be found in the WTG, OSS, and Met Tower Foundation 
Installation and Cable Landfall Activities subsections, respectively, 
below.
    To estimate the probability of exposure of animals to sound above 
NMFS' harassment thresholds during impact pile driving for foundation 
installation, JASCO's Animal Simulation Model Including Noise Exposure 
(JASMINE) was used to integrate the sound fields generated from the 
source and propagation models described above with species-typical 
behavioral parameters (e.g., dive patterns). Sound exposure models such 
as JASMINE use simulated animals (animats) to sample the predicted 3-D 
sound fields with movement rules derived from animal observations. 
Animats that exceed NMFS' acoustic thresholds are identified and the 
range for the exceedances determined. The output of the simulation is 
the exposure history for each animat within the simulation. An 
individual animat's sound exposure levels are summed over a specific 
duration (24 hours), to determine its total received acoustic energy 
(sound exposure level (SEL)) and maximum received PK and SPL. These 
received levels are then compared to the threshold criteria within each 
analysis period.
    JASCO ran JASMINE simulations for 7 days, assuming piling every 
day. Separate simulations were run for each scenario (e.g., pile 
diameter/number of piles per day/season combination). The combined 
history of all animats gives a probability density function of exposure 
during the project. The number of animals expected to exceed the 
regulatory thresholds per day is determined by scaling the number of 
predicted animat exposures by the species-specific density of animals 
in the area. The average number of exposures per day for the scenario 
in question was then multiplied by the number of days of pile driving 
planned for that scenario. In general, the number of days of pile 
driving is more influential in determining total exposures for Level B 
harassment than Level A harassment. However, the use of other 
conservative parameters (e.g., assuming most pile driving occurs in 
highest density months) in the calculation ensure that, regardless, the 
estimated take numbers appropriately represent the maximum number of 
instances marine mammals are reasonably likely to be harassed by the 
activities.
    By programming animats to behave like marine species that may be 
present near the Project Area, the sound fields are sampled in a manner 
similar to that expected for real animals. The parameters used for 
forecasting realistic behaviors (e.g., diving, foraging, and surface 
times) were determined and interpreted from marine species studies 
(e.g., tagging studies) where available, or reasonably extrapolated 
from related species (Weirathmueller et al., 2022).
    For modeled animals that have received enough acoustic energy to 
exceed a given harassment threshold, the exposure range for each animal 
is defined as the closest point of approach (CPA) to the source made by 
that animal while it moved throughout the modeled sound field, 
accumulating received acoustic energy. The CPA for each of the species-
specific animats during a simulation is recorded and then the CPA 
distance that accounts for 95 percent of the animats that exceed an 
acoustic impact threshold is determined. The ER95 
(95 percent exposure radial distance) is the horizontal distance that 
includes 95 percent of the CPAs of animats exceeding a given impact 
threshold. The ER95 ranges are species-specific 
rather than categorized only by any functional hearing group, which 
allows for the incorporation of more species-specific biological 
parameters (e.g., dive durations, swim speeds, etc.) for assessing the 
potential for PTS from impact pile driving.
    Atlantic Shores also calculated acoustic ranges which represent the 
distance to harassment thresholds based on sound propagation through 
the environment independent of any receiver. As described above, 
applying animal movement and behavior within the modeled noise fields 
allows for a more realistic indication of the distances at which PTS 
acoustic thresholds are reached that considers the accumulation of 
sound over different durations. The use of acoustic ranges 
(R95) to the Level A harassment SELcum 
metric thresholds to assess the potential for PTS is considered overly 
conservative as it does not account for animal movement and behavior 
and, therefore, assumes that animals are essentially stationary at that 
distance for the entire duration of the pile installation, a scenario 
that does not reflect realistic animal behavior. The acoustic ranges to 
the SELcum Level A harassment thresholds for impact pile 
driving can be found in Atlantic Shores' ITA application but will not 
be discussed further in this analysis. However, because NMFS' Level A 
harassment (PTS dBpeak) and Level B harassment (SPL) 
thresholds refer to instantaneous exposures, acoustic ranges are more 
relevant to the analysis. Also, because animat modeling was not 
conducted for vibratory pile driving, acoustic range is used to assess 
Level A harassment (dB SEL). Acoustic ranges to the Level A harassment 
(dBpeak), Level A harassment (dB SEL; vibratory pile driving 
only), and Level B harassment threshold for each activity are provided 
in the WTG, OSS, and Met Tower Foundation Installation subsection 
below. The differences between exposure ranges and acoustic ranges for 
Level B harassment are minimal given it is an instantaneous method.

Density and Occurrence

    In this section we provide the information about marine mammal 
density, presence, and group dynamics that informed the take 
calculations for all activities. For foundation installation and 
temporary cofferdam installation and removal, JASCO performed the 
analysis, while Environmental Design & Research, Landscape 
Architecture, Engineering & Environmental Services, D.P.C. (EDR) 
assessed HRG surveys, on behalf of Atlantic Shores. In either case, the 
2022 Duke University Marine Geospatial Ecology Laboratory Habitat-based 
Marine Mammal Density Models for the U.S. Atlantic (i.e., the Duke 
University density models; Roberts et

[[Page 65472]]

al., 2016; Roberts et al., 2023) were applied to estimate take from 
foundation installation, temporary cofferdam installation and removal, 
and HRG surveys (please see each activity subsection below for the 
resulting densities). The models estimate absolute density 
(individuals/100 km\2\) by statistically correlating sightings reported 
on shipboard and aerial surveys with oceanographic conditions. For most 
marine mammal species, densities are provided on a monthly basis. Where 
monthly densities are not available (e.g., pilot whales), annual 
densities are provided. Moreover, some species are represented as 
guilds (e.g., seals (representing Phocidae spp. comprising harbor and 
gray seals) and pilot whales (representing short-finned and long-finned 
pilot whales)).
    The Duke University density models delineate species' density into 
5 x 5 km (3.1 x 3.1 mi) grid cells. Atlantic Shores calculated mean 
monthly densities for each species using grid cells within the Lease 
Area and a predetermined buffer around the Lease Area that represented 
the expected ensonified area to NMFS' harassment thresholds for each 
sound-producing activity. All 5 x 5 km grid cells in the models that 
fell partially or fully within the analysis polygon were considered in 
the calculations. Cells that fell entirely on land were not included, 
but cells that overlapped only partially with land were included.
    For impact pile driving, the buffer from the edge of the Lease Area 
was chosen as it was based on the largest 10 dB-attenuated (from the 
bubble curtain/NAS) exposure range calculated based on installation of 
a 15-m monopile using a 4,400 kJ hammer (3.9 km (2.4); Table 9). For 
vibratory pile driving associated with temporary cofferdam installation 
and removal, Atlantic Shores applied the applicable buffer sizes at 
each of the landfall locations (7.546 km (4.7 mi) at the Atlantic site 
and 11.286 km (7 mi) at the Monmouth site) based on the 
R95 value for the largest acoustic range to 
threshold (Table 10). For HRG surveys, Atlantic Shores mapped the 
density data within the boundary of each survey area using geographic 
information systems (GIS). No buffer was applied given the small 
distance to Level B harassment (<200 m) during surveys compared to the 
grid cell size in the Duke University density models (5 x 5 km; Table 
11).

[[Page 65473]]



               Table 9--Mean Monthly and Annual Marine Mammal Density Estimates (animals/100 km\2\) for Impact Pile Driving Considering a 3.9-km Buffer Around the Lease Area \a\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                              Annual    May-Dec
               Marine mammal species                    Jan       Feb       Mar       Apr       May       Jun      July       Aug       Sep       Oct       Nov       Dec      mean       mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *.......................     0.069     0.074     0.062     0.046     0.010     0.003     0.001     0.001     0.002     0.004     0.010     0.042     0.027      0.009
Fin whale *........................................     0.178     0.123     0.098     0.099     0.088     0.075     0.047     0.028     0.029     0.031     0.038     0.141     0.081      0.060
Humpback whale.....................................     0.093     0.065     0.084     0.101     0.091     0.058     0.011     0.006     0.020     0.065     0.086     0.121     0.067      0.057
Minke whale........................................     0.051     0.049     0.049     0.737     0.810     0.202     0.054     0.026     0.015     0.066     0.016     0.042     0.176      0.154
Sei whale *........................................     0.026     0.016     0.034     0.074     0.027     0.006     0.001     0.001     0.002     0.008     0.026     0.042     0.022      0.014
Sperm whale *......................................     0.004     0.002     0.001     0.007     0.010     0.005     0.003     0.000     0.000     0.000     0.003     0.004     0.003      0.003
Atlantic spotted dolphin...........................     0.001     0.000     0.001     0.003     0.006     0.012     0.028     0.133     0.109     0.147     0.113     0.008     0.047      0.070
Atlantic white-sided dolphin.......................     0.355     0.225     0.221     0.673     0.755     0.605     0.018     0.004     0.059     0.556     0.591     0.601     0.389      0.399
Bottlenose dolphin, offshore \d\...................     1.409     0.489     0.732     2.460     6.311     8.449     9.350     9.485     8.613     8.335     9.468     5.944     5.920      8.244
Bottlenose dolphin, coastal \d\....................     2.917     1.024     2.053     8.290    20.869    27.429    29.272    31.415    32.096    29.744    30.414    16.667    19.349     27.238
Common dolphin.....................................     2.754     1.139     1.347     2.751     3.431     1.695     0.939     0.507     0.085     1.006     5.315     5.876     2.237      2.357
Long-finned pilot whale \b\........................  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........     0.016  .........
Short-finned pilot whale \b\.......................  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........     0.012  .........
Risso's dolphin....................................     0.015     0.002     0.003     0.031     0.029     0.008     0.006     0.006     0.006     0.013     0.074     0.115     0.026      0.032
Harbor porpoise....................................     3.968     3.756     3.091     4.161     1.025     0.033     0.023     0.016     0.003     0.007     0.029     2.891     1.584      0.503
Gray seal \c\......................................     4.881     3.521     2.352     2.866     4.508     0.492     0.080     0.054     0.120     0.639     1.731     4.588     2.153      1.527
Harbor seal \c\....................................    10.967     7.911     5.285     6.439    10.127     1.106     0.180     0.122     0.271     1.437     3.889    10.308     4.837      3.430
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts et al., 2023).
\b\ Long- and short-finned pilot whale densities are the annual pilot whale guild density scaled by their relative abundances.
\c\ Gray and harbor seal densities are the seals guild density scaled by their relative abundances.
\d\ Bottlenose dolphin stocks were split based on the 3.9 km buffer at the 20-m isobath where the coastal stock was allocated to areas <20 m and the offshore stock for areas >20 m.


[[Page 65474]]


  Table 10--Maximum Monthly Densities \a\ (No/100 km\2\) for September
          Through May Used To Analyze Cofferdam Activities \b\
------------------------------------------------------------------------
        Marine mammal species           Monmouth site     Atlantic site
------------------------------------------------------------------------
North Atlantic right whale *........             0.035             0.092
Fin whale *.........................             0.117             0.052
Humpback whale......................             0.132             0.114
Minke whale.........................             0.526             0.136
Sei whale *.........................             0.046             0.018
Sperm whale *.......................             0.008             0.002
Atlantic spotted dolphin............             0.033             0.014
Atlantic white-sided dolphin........             0.206             0.051
Common dolphin......................             2.058             0.524
Bottlenose dolphin (offshore stock)              22.53                 0
 \c\................................
Bottlenose dolphin (coastal stock)              27.795           146.614
 \c\................................
Long-finned pilot whale \d\.........                 0                 0
Short-finned pilot whale \d\........                 0                 0
Risso's dolphin.....................              0.02             0.002
Harbor porpoise.....................             2.768             0.821
Gray seal \e\.......................             4.477             9.029
Harbor seal \e\.....................            10.059            20.287
------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based
  Marine Mammal Density Models (Roberts et al., 2016; Roberts et al.,
  2023).
\b\ Density estimates are based on habitat-based density modeling of the
  entire Atlantic Exclusive Economic zone (EEZ).
\c\ For both bottlenose dolphin stocks, the impact area was split at the
  20-m isobath where the coastal stock was assumed to be in <20 m in
  depth and the offshore stock were allocated to waters >20 m in depth.
\d\ For long- and short-finned pilot whale densities, annual pilot whale
  guild densities were scaled by the relative abundance of each species.
\e\ For gray and harbor seal densities, the Roberts et al. (2023) seal
  guild was scaled by the relative abundance of each species.


   Table 11--Maximum Seasonal Densities Used To Analyze the Annual HRG
                    Surveys for the Project Area \a\
------------------------------------------------------------------------
                                                       Maximum seasonal
    Marine mammal species              Stock           density (No./100
                                                          km\2\) \b\
------------------------------------------------------------------------
North Atlantic right whale *.  Western Atlantic.....               0.056
Fin whale *..................  Western North                       0.114
                                Atlantic.
Humpback whale...............  Gulf of Maine........               0.090
Minke whale..................  Canadian Eastern                    0.401
                                Coastal.
Sei whale *..................  Nova Scotia..........               0.031
Sperm whale *................  Western North                       0.005
                                Atlantic.
Atlantic spotted dolphin.....  Western North                       0.033
                                Atlantic.
Atlantic white-sided dolphin.  Western North                       0.278
                                Atlantic.
Bottlenose dolphin \c\.......  Northern Migratory                 36.269
                                Coastal.
                               Western North
                                Atlantic--Offshore.
Common dolphin...............  Western North                       1.473
                                Atlantic.
Long-finned pilot whale \d\..  Western North                       0.004
                                Atlantic.
Short-finned pilot whale \d\.  Western North                       0.003
                                Atlantic.
Risso's dolphin..............  Western North                       0.017
                                Atlantic.
Harbor porpoise..............  Gulf of Maine/Bay of                2.506
                                Fundy.
Gray seal \e\................  Western North                       4.319
                                Atlantic.
Harbor seal \e\..............  Western North                       9.704
                                Atlantic.
------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ The survey area accounts for waters within and around the Lease Area
  and the ECRs.
\b\ Density estimates are calculated from the 2022 Duke Habitat-Based
  Marine Mammal Density Models (Roberts et al., 2016; Roberts et al.,
  2023).
\c\ The bottlenose dolphin density is for the species collectively, and
  was not delineated by stock.
\d\ Pilot whales are reported as a single ``pilot whale'' guild within
  the Duke University dataset Roberts et al., 2023 and are not species-
  specific. To partition take between each of the long-finned and short-
  finned pilot whale species, the total density was scaled based on the
  abundance estimates provided in the NOAA Fisheries SARs (Hayes et al.,
  2023).
\e\ Pinnipeds are reported as a single ``seals'' guild within the Duke
  University dataset (Roberts et al., 2023) and are not species-
  specific. To partition take between each of the harbor and gray seal
  species, the total density was scaled based on the abundance estimates
  provided in the NOAA Fisheries SARs (Hayes et al., 2023).

    Densities were computed based on when the proposed activities were 
expected. For foundation installation, densities were accrued monthly, 
annually, and specifically for the May-December period that coincided 
with the proposed pile driving activities. For temporary cofferdams, 
maximum monthly densities were calculated based on the planned 
September to May construction period. For HRG surveys, the maximum 
average seasonal density value for each marine mammal species was 
calculated.
    Here we note some exceptions, based on the availability of data. 
For the pilot whale guild (i.e., long-finned and short-finned), monthly 
densities are unavailable so annual mean densities were used instead. 
Additionally, the models provide density for pilot whales as a guild 
that includes both species. To obtain density estimates for long-finned 
and short-finned pilot whales, the guild

[[Page 65475]]

density was scaled by the relative stock sizes based on the best 
available abundance estimate from NOAA Fisheries SARs (NOAA Fisheries, 
2021b). Similarly, gray and harbor seal densities were scaled by each 
of their relative abundances, as found in the NOAA Fisheries SARs (NOAA 
Fisheries, 2021b). These scaled and surrogate densities were carried 
forward to the exposure and take estimates. Please see the activity-
specific subsections below for resulting densities.
    The equation below, using pilot whales as an example, shows how 
abundance scaling is applied to compute densities for the pilot whale 
and seal guilds.

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

Where D represents density and N represents abundance.
    For some species and activities, Atlantic Marine Assessment Program 
for Protected Species (AMAPPS) data from 2010-2019 shipboard distance 
sampling surveys (Palka et al., 2021) and observational data collected 
during previous site assessment surveys in the Project Area indicate 
that the density-based exposure estimates may be insufficient to 
account for the number of individuals of a species that may be 
encountered during the planned activities. This is particularly true 
for uncommon or rare species with very low densities in the models. 
Hence, consideration of other data is required to ensure the potential 
for take is adequately assessed.
    Here we note the existence of two different stocks of bottlenose 
dolphins, the coastal and offshore stocks, near the Project Area. 
However, the best available science consists of only a combined, single 
bottlenose dolphin density model found in Roberts et al. (2023). To 
appropriately account for which stock may be taken during foundation 
installation, the 3.9 km buffer was split at the 20-m isobath. Any 
bottlenose dolphins found within the 20-m isobath to shore were 
allocated to the coastal stock. Any that were outside of the 20-m 
isobath more seaward were allocated to the offshore stock. Animat 
simulations were run for each stock separately with the same behavioral 
characteristics. Because of this, the exposure ranges are very similar 
between the two stocks as the only difference would be due to the 
different random seeding that was incorporated into the analysis. 
During cofferdam installation and removal, it was assumed that all 
dolphins near the Atlantic landfall site would consist of the coastal 
stock, which allowed for a density value of zero for the offshore 
stock. However, given the Atlantic landfall site did not exceed the 20-
m isobath but the Monmouth site did, the area used to calculate the 
densities for bottlenose dolphins was split at the 20-m isobath. 
Because of this, any area <20 m deep and >20 m deep were used to 
calculate the exposures and takes for the coastal and offshore stocks, 
respectively. For HRG surveys, given that the northern migratory stock 
has more often been found in waters shallower than 20 m, the survey 
area was divided along the 20-m isobath break. Atlantic Shores 
estimated that 33 percent of the survey area fell from the 20-m isobath 
landward; therefore, 33 percent of the estimated take calculated for 
bottlenose dolphins was allocated to the coastal stock and the 
remaining was applied to the offshore stock.
    Mean group sizes were used in the take estimation and were derived 
from NMFS' data upload to the Ocean Biodiversity Information System 
(OBIS) repository (OBIS, 2022), which is informed by information from 
the AMAPPS 2010-2019 aerial and shipboard surveys, North Atlantic right 
whale aerial surveys, and other surveys. The dataset was downloaded 
from OBIS and then filtered to include only observations from the 
Northwestern Atlantic region (extending from the Gulf of Maine to Cape 
Hatteras and the relevant shelf edge) with the institution owner code 
of ``NMFS''. From there, the average group sizes were calculated as the 
mean value of the ``individualCount'' column for all sighting records 
for a species. Additional information was also incorporated based on 
Atlantic Shores' experience with site characterization surveys in this 
region through issued IHAs (87 FR 24103, April 22, 2022; 88 FR 38821, 
June 14, 2023). This yielded unique group sizes for long-finned pilot 
whales, Atlantic spotted dolphins, and Risso's dolphins that were used 
rather than the OBIS dataset.
    Additional detail regarding the density and occurrence as well as 
the assumptions and methodology used to estimate take for specific 
activities is included in the activity-specific subsections below and 
in the February 2023 update memo. Average group sizes used in take 
estimates, where applicable, for all activities are provided in Table 
12.

    Table 12--Average Marine Mammal Group Sizes Used in Take Estimate
                              Calculations
------------------------------------------------------------------------
                 Marine mammal species                   Mean group size
------------------------------------------------------------------------
North Atlantic right whale *..........................           \c\ 3.8
Fin whale *...........................................           \c\ 1.3
Humpback whale........................................           \c\ 1.8
Minke whale...........................................           \c\ 1.1
Sei whale *...........................................           \c\ 2.1
Sperm whale *.........................................           \c\ 1.8
Atlantic spotted dolphin..............................           \a\ 100
Atlantic white-sided dolphin..........................          \c\ 21.4
Common dolphin........................................          \b\ 1.55
Bottlenose dolphin, coastal...........................          \c\ 13.1
Bottlenose dolphin, offshore..........................                30
Long-finned pilot whale...............................            \a\ 20
Short-finned pilot whale..............................           \c\ 6.0
Risso's dolphin.......................................            \a\ 20
Harbor porpoise.......................................           \c\ 1.3
Gray seal.............................................           \c\ 1.2
Harbor seal...........................................           \c\ 1.2
------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ These mean group sizes were used in the 2022 (87 FR 24103, April 22,
  2022) and 2023 (88 FR 38821, June 14, 2023) IHAs for site
  characterization surveys and are informed by previous HRG surveys in
  the area.
\b\ The mean group size for common dolphins was based on the daily
  sighting rate of that species during HRG surveys.
\c\ These group sizes are from the OBIS data repository (OBIS, 2022).


[[Page 65476]]

WTG, OSS, and Met Tower Foundation Installation

    Here we describe the results from the acoustic, exposure, and take 
estimate methodologies outlined above for WTG, OSS, and Met Tower 
foundation installation activity that have the potential to result in 
harassment of marine mammals (i.e., impact pile driving). We present 
exposure ranges to Level A harassment (SEL) thresholds from impact 
driving, acoustic ranges to Level A harassment (peak) and Level B 
harassment thresholds, densities, exposure estimates, and the amount of 
take requested and proposed to be authorized incidental to foundation 
installation following the aforementioned assumptions (e.g., 
construction and hammer schedules). As described above, this proposed 
rule analyzes a modified Schedule 2 which accommodates a full monopile 
WTG build-out of Project 1 and Met Tower and a full jacket buildout for 
the WTGs in Project 2. Schedule 2 assumes foundation installation 
activities would occur over a 2 year period (May through December, 
annually).
    As previously described, JASCO integrated the results from acoustic 
source and propagation modeling into an animal movement model to 
calculate exposure ranges for 16 marine mammal species (17 stocks) 
considered common in the Project Area. The resulting ranges represent 
the distances at which marine mammals may incur Level A harassment 
(i.e., PTS).
    As described in the Detailed Description of Specified Activities 
section, Atlantic Shores' preference is to install 15-m monopiles but 
Atlantic Shores may alternatively install 12-m monopiles. Hence, we 
have provided the modeled exposure and ranges for 12-m and 15-m 
monopiles below. We note that because the 15-m monopiles produce larger 
sound fields in general, in order to ensure a conservative analysis, 
this proposed rule assumes all take is consistent with that expected 
for the 15-m monopiles.
    Similarly, as described in the Detailed Description of Specified 
Activities section, Atlantic Shores may install pre- or post-piled pin 
piles to construct the jacket foundations. We note that because post-
piled pin piles produce larger sound fields than pre-piled piles, this 
proposed rule carries forward take specific to the post-piled pin 
piles. To more appropriately account for the larger radiated area 
produced around the jacket foundations as pin piles are driven, the 
broadband sound level estimated for the jacket piles was increased by 2 
dB in all post-piling scenarios.
    Table 13 provides the exposure ranges for impact pile driving of a 
12-m monopile, 15-m monopile, and 5-m pin pile and (pre- and post-
piled) jacket foundations, assuming 10 dB of sound attenuation to the 
PTS (SEL) thresholds.

   Table 13--Exposure Ranges (ER95%) in Kilometers to Marine Mammal PTS (SEL; Level A Harassment) Thresholds During Impact Pile Driving 12-m and 15-m
                               Monopiles, and 5-m Pin Piles (Pre- and Post-Piled) for Jackets, Assuming 10 dB Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             12-m monopiles, 4,400 kJ        15-m monopiles, 4,400 kJ     5-m pin piles, 2,500 kJ hammer
                                                                      hammer                          hammer             -------------------------------
         Marine mammal hearing group and species         ---------------------------------------------------------------- Four pin piles/ Four pin piles/
                                                                           Two piles/day                   Two piles/day     day (pre-      day (post-
                                                           One pile/day         \b\        One pile/day         \b\           piled)          piled)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale (migrating) *................            0.56            0.67            0.72            0.72            0.73            1.06
Fin whale (sei whale proxy) * \a\.......................            1.09            1.30            1.81            1.83            1.80            1.90
Humpback whale..........................................            1.08            1.01            1.25            1.29            1.07            1.56
Minke whale.............................................            0.33            0.38            0.35            0.41            0.40            0.69
Sperm whale *...........................................               0               0               0               0               0               0
Atlantic spotted dolphin................................               0               0               0               0               0               0
Atlantic white-sided dolphin............................               0               0               0               0               0            0.01
Bottlenose dolphin (offshore)...........................               0               0               0               0               0               0
Bottlenose dolphin (coastal)............................               0               0               0               0               0               0
Common dolphin..........................................               0               0               0               0               0               0
Long-finned pilot whale.................................               0               0               0               0               0               0
Short-finned pilot whale................................               0               0               0               0               0               0
Risso's dolphin.........................................               0               0               0               0           <0.01           <0.01
Harbor porpoise.........................................            0.39            0.32            0.26            0.28            1.11            1.48
Gray seal...............................................            0.01               0            0.02               0            0.15            0.24
Harbor seal.............................................           <0.01           <0.01           <0.01           <0.01            0.16            0.32
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Fin whales were used as a surrogate for sei whale behaviors.
\b\ Given the revised construction schedule, Atlantic Shores has carried forward into their exposure and take estimates only constructing one pile per
  day for this proposed action.

    We note here that between the two differently sized monopiles, all 
of the distances to the Level A harassment threshold are smaller for 
the 12-m, with exception for the harbor porpoise distances, which show 
minute differences between the 15-m (0.26 and 0.28) and the 12-m (0.39 
and 0.32) for each of one or two piles installed per day, respectively 
(Table 13). This is because as the pile diameter increases from 12 to 
15 meters, the frequency spectrum shifts. More of the energy increase 
occurs at the lower frequencies, which are largely filtered out by the 
high-frequency weighting function.
    As described above, JASCO also calculated acoustic ranges which 
represent distances to NMFS' harassment isopleths independent of 
movement of a receiver. Presented below are the distances to the PTS 
(dB peak) threshold for impact pile driving and the Level B harassment 
(SPL) thresholds for all impact pile driving during WTG, OSS, and Met 
Tower foundation installation (Tables 14 and 15).

[[Page 65477]]



                             Table 14--Acoustic Ranges (R95), in Kilometers, to PTS (Lpk) Thresholds During Impact Pile Driving, Assuming 10 dB Attenuation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                  Low- frequency  Mid- frequency       High-          Phocids
                                                                                                                     Activity        cetacean        cetacean        frequency   ---------------
                Pile type                     Installation method      Modeled source  location   Hammer  energy     duration    --------------------------------    cetaceans
                                                                                                       (kJ)          (minutes)                                   ----------------   218 Lp, pk
                                                                                                                                    219 Lp, pk      230 Lp, pk      202 Lp, pk
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
12-m Monopile...........................  Impact hammer.............  L01.......................           4,400             540            0.08            0.01            0.72            0.09
                                                                      L02.......................           4,400                            0.06            0.01            0.74            0.07
15-m Monopile...........................  Impact hammer.............  L01.......................           4,400             540            0.08            0.01            0.78            0.09
                                                                      L02.......................           4,400                            0.07            0.01            0.78            0.08
5-m Pin Pile............................  Impact hammer.............  L01.......................           2,500             180            0.02            0.00            0.28            0.03
                                                                      L02.......................           2,500                            0.02            0.00            0.28            0.03
5-m Pin Pile (2 dB shift for post-piled)  Impact hammer.............  L01.......................           2,500             180            0.01            0.00            0.23            0.03
                                                                      L02.......................           2,500                            0.01            0.01            0.14            0.04
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Lp,pk = peak sound pressure (dB re 1 [mu]Pa).


  Table 15--Acoustic Ranges (R95), in Kilometers, to Level B Harassment (SPL, 160 LP) Thresholds During
                                 Impact Pile Driving, Assuming 10 dB Attenuation
----------------------------------------------------------------------------------------------------------------
                                                                  Hammer  energy
               Pile type                   Installation method         (kJ)             L01             L02
----------------------------------------------------------------------------------------------------------------
12-m Monopile.........................  Impact Hammer...........           4,400            8.20            7.31
15-m Monopile.........................  Impact Hammer...........           4,400            8.30            7.44
5-m Pin Pile (pre-piled)..............  Impact Hammer...........           2,500            4.76            1.98
5-m Pin Pile (post-piled).............  Impact Hammer...........           2,500            5.50            2.28
----------------------------------------------------------------------------------------------------------------
Note: Lp = root-mean square sound pressure (dB re 1 [mu]Pa).

    Next, the specific densities for each marine mammal species were 
incorporated. Initially, Atlantic Shores provided the densities used in 
the analysis in their ITA application. However, due to the June 2022 
release of the updated Duke University density models, Atlantic Shores 
submitted a memo with the revised densities and the derived exposure 
and take estimates. These were the values NMFS carried forward into 
this proposed rule (refer back to Tables 9, 10, and 11).
    To estimate take from foundation installation activities, Atlantic 
Shores assumed the buildout described for the modified Schedule 2 (see 
the PDE Refinement Memo), which entails that all WTGs and the Met Tower 
found within Project 1 would be built using 15-m monopiles and all WTGs 
in Project 2 would be built on jacket foundations using 5-m piles. All 
OSSs would be built on jacket foundations using 5-m pin piles. The full 
buildout of Atlantic Shores South (200 WTGs) assuming Schedule 2 is 
provided on Table 16. This represents the maximum amount of take that 
would occur incidentally to Atlantic Shores South as no more than 200 
WTGs, 1 Met Tower, and 10 OSSs will be installed within the Lease Area. 
However, Atlantic Shores has requested NMFS issue two distinct LOAs for 
each of Project 1 and Project 2. Hence, there is a need to also 
estimate the maximum amount of annual take from each Project which, 
collectively, is greater given it is currently unknown exactly how many 
WTG and OSSs will be constructed in each Project. For this analysis, it 
was assumed that Project 1 may have a maximum of 105 WTGs (plus 6 WTG 
foundations installed as part of the Overlap Area for Project 1; 
n=111), 1 Met Tower, and 2 OSSs and Project 2 may have a maximum of 89 
WTGs (plus 6 WTG foundations installed as part of the Overlap Area for 
Project 2; n=95) and 2 OSS. As described above, the number of days of 
pile driving per month is part of the exposure estimate calculation. 
Atlantic Shores assumes that 1 monopile could be installed per day and 
four pin piles could be installed per day.

[[Page 65478]]



                                                   Table 16--Project 1 and Project 2's Buildout Schedule Presented Annually and Over Two-Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                   Year 1 (2026)                                                         Year 2 (2027) \a\
                                                 -----------------------------------------------------------------------------------------------------------------------------------------------
                                                             Project 1                       Project 2                                 Total                                 Project 2
                                                 -----------------------------------------------------------------------------------------------------------------------------------------------
                                                     Number of days (number of       Number of days (number of                                                       Number of days (number of
               Construction month                        piles installed)                piles installed)        ------------------------------------------------        piles installed)
                                                 ----------------------------------------------------------------                                                -------------------------------
                                                    WTG and met                                                    WTG monopile   WTG jacket 5-m  OSS jacket 5-m
                                                  tower monopile  OSS jacket 5-m  WTG jacket 5-m  OSS jacket 5-m   15-m (1 pile/   pin piles (4    pin piles (4   WTG jacket 5-m  OSS jacket 5-m
                                                   15-m (1 pile/   pin piles (4    pin piles (4    pin piles (4        day)         piles/day)      piles/day)     pin piles (4    pin piles (4
                                                       day)         piles/day)      piles/day)      piles/day)                                                      piles/day)      piles/day)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May.............................................           8 (8)           0 (0)           0 (0)           0 (0)           8 (8)           0 (0)           0 (0)          5 (20)           0 (0)
June............................................         20 (20)          6 (24)           0 (0)           0 (0)         20 (20)           0 (0)          6 (24)         15 (60)          6 (2$)
July............................................         25 (25)           0 (0)           0 (0)           0 (0)         25 (25)           0 (0)           0 (0)         20 (80)           0 (0)
August..........................................         19 (19)          6 (24)           0 (0)           0 (0)         19 (19)           0 (0)          6 (24)         18 (72)          6 (2$)
September.......................................         18 (18)           0 (0)           0 (0)           0 (0)         18 (18)           0 (0)           0 (0)         14 (56)           0 (0)
October.........................................         16 (16)           0 (0)           0 (0)           0 (0)         16 (16)           0 (0)           0 (0)         13 (52)           0 (0)
November........................................           5 (5)           0 (0)          5 (20)           0 (0)           5 (5)          5 (20)           0 (0)          4 (16)           0 (0)
December........................................           1 (1)           0 (0)           1 (4)           0 (0)           1 (1)           1 (4)           0 (0)           0 (0)           0 (0)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Totals
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Piling Days...............................             112              12                 6                           112                18
                                                                101
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Piles.....................................             112              48                24                           112                72
                                                                404
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Foundations \b\...........................             112               2                 6                           112                 8
                                                                91
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ As 2027 only has foundation installation activities occurring from Project 2, there is no total column for this year.
\b\ The total foundations included in this table sum up to more (n=207) than the planned number of WTG and Met Tower foundations (n=201) due to the possibility of 6 WTGs being installed either
  under Project 1 or Project 2 in the Overlap Area; these are therefore counted twice within this table.


[[Page 65479]]

    Atlantic Shores assumes that construction would start in 2026 for 
foundation installation (Table 16). Modeling assumed that up to 106 
monopile foundations (105 WTGs plus the Met Tower) would be installed 
during May through October in the area for Project 1 (2026) and up to 
89 monopiles (WTGs) for Project 2 for May through December (in part of 
2026 and in 2027). Additionally, up to 6 monopile foundations (WTGs) 
could be installed during November through December for either Project 
1 or Project 2 (total of 112 WTG and Met Tower foundations for Project 
1 or a total of 94 WTG foundations for Project 2). This also assumes 
the buildout of two large-sized OSSs each being installed on jacket 
foundations during June and August for each of Project 1 and for 
Project 2. Atlantic Shores expects that all foundation installation 
activities for Project 1 would occur during the first year of 
construction activities (2026) with parts of Project 2 starting in 2026 
and completing in 2027.
    Between these schedules, we note that Atlantic Shores has analyzed 
the construction of 205 permanent foundation structures, including up 
to 200 WTGs, one Met Tower, and 4 large-sized OSSs. The 6 WTGs in the 
overlap area are included in the maximum take calculation for each of 
Project 1 and Project 2. The Project 1 take calculations include the 6 
WTGs in the overlap area during Year 1 to ensure sufficient take for 
Project 1 (if those positions are allocated to Project 1 during 
construction). If, however, those positions are allocated to Project 2, 
they are also included during Year 1 of foundation installation for 
Project 2 (to ensure sufficient take allocation to Project 2 during 
that year). However, the full buildout scenario, which describes the 
take for the Projects combined, only includes the 6 WTGs in the entire 
project once (to avoid double counting of the 6 WTGs).
    As described previously, to estimate the amount of take that may 
occur incidental to the foundation installation, Atlantic Shores 
conducted exposure modeling to estimate the number of exposures that 
may occur from impact pile driving in a 24-hour period. Exposure 
estimates were then scaled to reflect the appropriate density estimates 
as described above. These scaled 24-hour exposure estimates were then 
multiplied by the number of days to produce the estimated take numbers 
for each year. Exposure estimates can be found within the LOA Updates 
Memo on NMFS' website.
    As described above, exposure estimates were subsequently adjusted 
based on appropriate group sizes and PSO data (refer back to Table 12) 
to yield the requested take in Atlantic Shores' LOA Updates Memo. The 
amount of take Atlantic Shores requested similarly equates to the 
amount of take NMFS proposes to authorize (Tables 17 and 18).

  Table 17--Annual Total Exposure Estimates and Proposed Takes by Level A Harassment and Level B Harassment for Foundation Installation Activities for
                                                           Project 1, Assuming Schedule 2 \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Year 2 (2026)                                      Year 3 (2027) \b\
                                                --------------------------------------------------------------------------------------------------------
                                                    Estimated exposures          Proposed take           Estimated exposures          Proposed take
             Marine mammal species              --------------------------------------------------------------------------------------------------------
                                                   Level A      Level B      Level A       Level B      Level A      Level B      Level A      Level B
                                                  harassment   harassment   harassment   harassment    harassment   harassment   harassment   harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *...................         0.14         1.24            0            4             0            0            0            0
Fin whale *....................................         2.80         8.23            3            9             0            0            0            0
Humpback whale.................................         2.20         8.33            3            9             0            0            0            0
Minke whale....................................        10.07       135.38           11          136             0            0            0            0
Sei whale *....................................         0.35         1.04            1            3             0            0            0            0
Sperm whale *..................................            0            0            0            2             0            0            0            0
Atlantic spotted dolphin.......................            0            0            0          100             0            0            0            0
Atlantic white-sided dolphin...................         0.01       159.94            1          160             0            0            0            0
Bottlenose dolphin, offshore...................            0     3,100.73            0        3,101             0            0            0            0
Bottlenose dolphin, coastal....................            0        50.32            0           51             0            0            0            0
Common dolphin.................................            0            0            0          193             0            0            0            0
Long-finned pilot whale........................            0            0            0           20             0            0            0            0
Short-finned pilot whale.......................            0            0            0            6             0            0            0            0
Risso's dolphin................................        <0.01         5.58            1           30             0            0            0            0
Harbor porpoise................................         1.38        49.85            2           50             0            0            0            0
Gray seal......................................         0.52        98.42            1           99             0            0            0            0
Harbor seal....................................         1.29       235.51            2          236             0            0            0            0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ While the foundation installation counted the 6 WTGs in the Overlap Area for both Project 1 and Project 2, the exposure estimates and take requested
  is based on those 6 WTGs only being installed once under the full buildout scenario; no double counting of take occurred.
\b\ All of Project 1's activities would be completed within a single year (2026), which means that no take would occur during the second construction
  year (2027).


 Table 18--Annual Exposure Estimates and Proposed Takes by Level A Harassment and Level B Harassment for Foundation Installation Activities For Project
                                                               2, Assuming Schedule 2 \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              ITA request year 2 (2026)                            ITA request year 3 (2027)
                                                --------------------------------------------------------------------------------------------------------
                                                    Estimated exposures          Proposed take           Estimated exposures          Proposed take
             Marine mammal species              --------------------------------------------------------------------------------------------------------
                                                   Level A      Level B      Level A       Level B      Level A      Level B      Level A      Level B
                                                  harassment   harassment   harassment   harassment    harassment   harassment   harassment   harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *...................         0.08         0.43            0            4          0.24         1.31            0            4
Fin whale *....................................         0.24         0.65            1            2          3.46         9.20            4           10
Humpback whale.................................         0.46         1.53            1            2          3.02         9.82            4           10
Minke whale....................................         0.16         1.55            1            2         16.27       141.72           17          142
Sei whale *....................................         0.13         0.34            1            3          0.41         1.09            1            3
Sperm whale *..................................            0            0            0            2             0            0            0            2
Atlantic spotted dolphin.......................            0            0            0          100             0            0            0          100
Atlantic white-sided dolphin...................            0        21.98            0           22          0.01       171.37            1          172

[[Page 65480]]

 
Bottlenose dolphin, offshore...................            0       201.39            0          202             0     3,416.59            0        3,417
Bottlenose dolphin, coastal....................            0            0            0           14             0            0            0           14
Common dolphin.................................            0            0            0           10             0            0            0          157
Long-finned pilot whale........................            0            0            0           20             0            0            0           20
Short-finned pilot whale.......................            0            0            0            6             0            0            0            6
Risso's dolphin................................        <0.01         2.61            1           30         <0.01         6.03            1           30
Harbor porpoise................................         5.40        17.14            6           18         12.52        39.23           13           40
Gray seal......................................         0.45        23.56            1           24          2.00        94.34            2           95
Harbor seal....................................         1.66        53.29            2           54          7.03       213.40            8          214
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Includes the 6 WTGs in the Overlap Area.

    Based on Tables 17 and 18 above, NMFS proposes to authorize the 
following numbers for the harassment of marine mammals incidental to 
foundation installation activities of WTGs, OSSs, and the Met Tower by 
Level A harassment and Level B harassment in Table 19. We note that 
Atlantic Shores did not request, nor is NMFS proposing to authorize, 
serious injury and/or mortality of marine mammals. Furthermore, no 
Level A harassment of North Atlantic right whales has been proposed for 
authorization due to enhanced mitigation measures that Atlantic Shores 
would be required to implement for this species.

 Table 19--Maximum Annual Exposure Estimates and Proposed Takes by Level A Harassment and Level B Harassment for All Foundation Installation Activities
                                        in Both Project 1 and Project 2 (Full Buildout), Assuming Schedule 2 \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              ITA request year 2  (2026)                          ITA request year 3  (2027)
                                                --------------------------------------------------------------------------------------------------------
                                                    Estimated exposures          Proposed take           Estimated exposures          Proposed take
             Marine mammal species              --------------------------------------------------------------------------------------------------------
                                                   Level A      Level B      Level A       Level B      Level A      Level B      Level A      Level B
                                                  harassment   harassment   harassment   harassment    harassment   harassment   harassment   harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *...................         0.14         1.24            0            4          0.24         1.31            0            4
Fin whale *....................................         2.80         8.23            3            9          3.46         9.20            4           10
Humpback whale.................................         2.20         6.15            3            9          3.02         9.82            4           10
Minke whale....................................        10.07       135.38           11          136         16.27       141.72           17          142
Sei whale *....................................         0.35         1.04            1            3          0.41         1.09            1            3
Sperm whale *..................................            0            0            0            2             0            0            0            2
Atlantic spotted dolphin.......................            0            0            0          100             0            0            0          100
Atlantic white-sided dolphin...................         0.01       159.94            1          160          0.01       171.37            1          172
Bottlenose dolphin, offshore...................            0     3,100.73            0        3,101             0     3,416.59            0        3,417
Bottlenose dolphin, coastal....................            0        50.32            0           51             0            0            0           14
Common dolphin.................................            0            0            0          193             0            0            0          157
Long-finned pilot whale........................            0            0            0           20             0            0            0           20
Short-finned pilot whale.......................            0            0            0            6             0            0            0            6
Risso's dolphin................................        <0.01         5.58            1           30         <0.01         6.03            1           30
Harbor porpoise................................         1.38        49.85            2           50         12.52        39.23           13           40
Gray seal......................................         0.52        98.42            1           99          2.00        94.34            2           95
Harbor seal....................................         1.29       235.51            2          236          7.03       213.40            8          214
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ While the foundation installation counted the 6 WTGs in the Overlap Area for both Project 1 and Project 2, the exposure estimates and take requested
  is based on those 6 WTGs only being installed once under the full buildout scenario; no double counting of take occurred. In total, this table
  accounts for exposure and take estimates of 200 WTGs, 1 Met Tower, and 4 OSSs.


[[Page 65481]]

Cable Landfall Activities

    We previously described the acoustic modeling and static 
methodologies to estimate the take of marine mammals and have already 
identified that Atlantic Shores estimated take using propagation 
modeling which then used a static density-based approach. This 
information will not be reiterated here. Here, we present the results 
of acoustic modeling and take estimation processes, as previously 
described. More information can also be found in the ITA application 
and subsequent supplementary memos provided by the applicant.
    Atlantic Shores proposes to install and remove up to four temporary 
cofferdams per Atlantic and Monmouth cable landfall location (eight 
cofferdams total) using a vibratory hammer. To calculate the acoustic 
ranges to PTS thresholds, it was assumed that up to 8 hours of 
vibratory pile driving would occur within any 24-hour period. The 
furthest ranges were noted where the sound propagated offshore from the 
New Jersey coastline into the continental shelf (see Figure 3 in the 
supplemental memo for Appendix D). Variation in acoustic ranges between 
the two sites is due to differing propagation loss properties. See 
Table 20 below for the ranges to the thresholds for both Level A 
harassment and Level B harassment.

  Table 20--Acoustic Ranges (R95%) in Meters to the Level A Harassment (PTS) and Level B Harassment Thresholds From Vibratory Pile Driving During Temporary Cofferdam Installation and Removal
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Atlantic landfall site                                          Monmouth landfall site
                                                                --------------------------------------------------------------------------------------------------------------------------------
                                                                   Level A  harassment SELcum       Level B harassment  SPLrms      Level A harassment  SELcum       Level B harassment SPLrms
                  Marine mammal hearing group                          thresholds (dB re 1            threshold (120 dB re 1            thresholds (dB re 1           threshold (120 dB re 1
                                                                      [micro]Pa2[middot]s)                  [micro]Pa)                 [micro]Pa2[middot]s)                 [micro]Pa)
                                                                --------------------------------------------------------------------------------------------------------------------------------
                                                                     Summer          Winter          Summer           Winter          Summer          Winter          Summer          Winter
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans........................................              65              65           5,076           7,546               45              60           5,412          11,268
Mid-frequency cetaceans........................................               0               0                                                0               0
High-frequency cetaceans.......................................             490             540               0               0              425             450
Phocids........................................................              30              30                                               20              20
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Given the very small distances to the Level A harassment thresholds 
(0-540 m), which accounts for 8 hours of pile driving, installation and 
removal of temporary cofferdams is not expected to result in any Level 
A harassment of marine mammals. Atlantic Shores did not request, nor is 
NMFS proposing to authorize, any Level A harassment incidental to 
vibratory pile driving activities.
    Using the acoustic ranges to the Level B harassment threshold, the 
ensonified area around each cable landfall construction site was 
determined for each of the two seasons (i.e., summer and winter) using 
the following formula:

Ensonified Area = pi x r,2

where r is the linear acoustic range distance from the source to the 
isopleth to the Level B harassment thresholds. Given the acoustic 
source is stationary, this formula assumes the distance to threshold 
would be the radius with the source in the center.
    For vibratory pile driving associated with the sheet pile 
installation and removal necessary for cofferdams, it was assumed that 
the daily ensonified area was 104.33 km\2\ (25,780.12 acres) at the 
Atlantic landfall site and 221.77 km\2\ (54,799.57 acres) at the 
Monmouth landfall site. To estimate marine mammal densities around the 
nearshore landfall sites, the largest 95th percentile acoustic range to 
threshold (R95; 7.546 km at the Atlantic site and 
11.268 km at the Monmouth site) were used as density buffers. The 
maximum annual densities were calculated for each landfall location 
based on the average of the Duke University density model grid cells 
for each species and the period of time for when cofferdam activities 
may occur (September to May). Any grids that overlapped partially or 
completed were included. Grid cells that fell entirely on land were not 
included in the analysis, but due to the nearshore proximity of the 
cofferdams, grid cells that overlapped partially with land and water 
were included in the analysis. For two species guilds (i.e., pinnipeds 
and pilot whale spp.), minor adjustments were necessary as the Roberts 
et al. (2023) data did not separate these by species. In these two 
cases, the densities were scaled by the relative abundance of each 
species, as described in the final 2022 SARs (Hayes et al., 2023).
    Annual maximum marine mammal exposures were calculated assuming 
that cofferdam activities would only occur during the activity window 
of September through May. The density value for each species 
represented the highest density month for each specific species within 
this window, so as to not underestimate any potential take when the 
activity would occur. The exposures were calculated using the following 
static formula:

Exposures = area ensonified x (days) x density,

Where the area ensonified is equal to p x r\2\, wherein r is equal to 
the Level B harassment isopleth distance, days constituted the total 
number of days needed for cofferdam activities (n=28), and density were 
incorporated as species-specific during the activity window.
    The exposure estimates were calculated assuming 6 days of 
installation and 6 days of removal at the Atlantic City landfall 
location (n=12), and 8 days of installation and 8 days of removal at 
the Monmouth landfall location (n=28), equating to 28 days in total. In 
their adequate and complete ITA application, Atlantic Shores initially 
proposed 16 days total for the Atlantic City landfall location (8 days 
of installation and 8 days of removal). However, given the shallower 
waters at this location, they believe that it would be possible to 
install and remove the temporary cofferdams more quickly than initially 
modeled, thus reducing the total number of days at this location 
(n=12). Where applicable, calculated exposure estimates were then 
adjusted up for average group sizes, per Table 12, to yield the 
proposed take numbers. The estimated take and maximum amount of take 
proposed for authorization during temporary cofferdam installation and 
removal during the proposed Project is in Table 21. No take by Level A 
harassment is expected, nor has it been requested by Atlantic Shores or 
proposed for authorization by NMFS.

[[Page 65482]]



Table 21--The Maximum Predicted Level B Harassment Exposures, and Total Takes By Level B Harassment Proposed for
                    Authorization for Cofferdam Activities With Group Size Adjustment \a\ \b\
----------------------------------------------------------------------------------------------------------------
                                                                                Atlantic City
                                            Atlantic City       Monmouth       total takes by    Monmouth total
          Marine mammal species             landfall site     landfall site        Level B      takes by Level B
                                              exposures         exposures        harassment        harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *............              1.15              1.23                 4                 4
Fin whale *.............................              0.65              4.14                 2                 5
Humpback whale..........................              1.43              4.70                 2                 5
Minke whale.............................              1.70             18.66                 2                19
Sei whale...............................              0.23              1.62                 3                 3
Sperm whale.............................              0.03              0.28                 2                 2
Atlantic spotted dolphin................              0.18              1.16               100               100
Atlantic white-sided dolphin............              0.64              7.31                22                22
Common dolphin..........................              6.56             73.01                 7                74
Bottlenose dolphin (offshore stock).....                 0            307.29                 0               308
Bottlenose dolphin (coastal stock)......          1,835.55            607.29             1,836               608
Long-finned pilot whale \c\.............                 0              0.01                 6                 6
Short-finned pilot whale \c\............                 0              0.01                 2                 2
Risso's dolphin.........................              0.03              0.70                20                20
Harbor porpoise.........................             10.28             98.23                11                99
Gray seal...............................            113.04            158.86               114               159
Harbor seal.............................            253.99            356.92               254               357
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Group size for adjustments can be found in Table 12.
\b\ The Atlantic City landfall site installation and removal is in Year 1; Monmouth landfall site installation
  and removal is in Year 2.
\c\ Atlantic Shores has requested a single group size for these species.

HRG Surveys

    Atlantic Shores' proposed HRG survey activities include the use of 
impulsive (i.e., sparkers) and non-impulsive sources (i.e., CHIRPs) 
that have the potential to harass marine mammals. The list of all 
equipment proposed is in Table 2 (see Detailed Description of Specified 
Activities).
    Authorized takes would be by Level B harassment only in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Specific to HRG surveys, in order to better consider the narrower and 
directional beams of the sources, NMFS has developed a calculation 
tool, available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance, for 
determining the distances at which sound pressure level 
(SPLrms) generated from HRG surveys reach the 160 dB 
threshold. The equations in the tool consider water depth, frequency-
dependent absorption and some directionality to refine estimated 
ensonified zones. Atlantic Shores 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 operating with different beamwidths, the beamwidth 
associated with operational characteristics reported in Crocker and 
Fratantonio (2016) were used.
    The isopleth distances corresponding to the Level B harassment 
threshold for each type of HRG equipment with the potential to result 
in harassment of marine mammals were calculated per NOAA Fisheries' 
Interim Recommendation for Sound Source Level and Propagation Analysis 
for High Resolution Geophysical Sources. The distances to the Level B 
harassment isopleth are presented in Table 22. Please refer to Appendix 
C for a full description of the methodology and formulas used to 
calculate distances to the Level B harassment threshold.

 Table 22--Distances Corresponding to the Level B Harassment Threshold for HRG Equipment Operating Below 180 kHz
----------------------------------------------------------------------------------------------------------------
                                                                                 Horizontal
                                                                              distance (m)  to
          HRG survey equipment type            Representative equipment type     the Level B     Ensonified area
                                                                                 harassment          (km\2\)
                                                                                  threshold
----------------------------------------------------------------------------------------------------------------
Sparker.....................................  Applied Acoustics Dura-Spark                 141             15.57
                                               240.
                                              GeoMarine Geo-Source..........                56
CHIRP.......................................  Edgetech 2000-DSS.............                56
                                              Edgetech 216..................                 9
                                              Edgetech 424..................                10
                                              Edgetech 512i.................                 9
                                              Pangeosubsea Sub-Bottom                       32
                                               Imager\TM\.
----------------------------------------------------------------------------------------------------------------

    The survey activities that have the potential to result in Level B 
harassment (160 dB SPL) include the noise produced by sparkers and 
CHIRPS. Of these, the Applied Acoustics Dura-Spark 240 results in the 
greatest calculated distance to the Level B harassment criteria at 141 
m (463 ft).
    The total area ensonified was estimated by considering the distance 
of the daily vessel track line (determined using the estimated average 
speed of the

[[Page 65483]]

vessel and the 24-hour operational period within each of the 
corresponding survey segments) and the longest horizontal distance to 
the relevant acoustic threshold from an HRG sound source (full formula 
in Section 6 of the ITA application and in the Revised HRG Memo on 
NMFS' website). Using the larger distance of 141 m to the 160 
dBRMS90% re 1 [mu]Pa Level B harassment isopleth (Table 22), 
the estimated daily vessel track of approximately 55 km (34.2 mi) per 
vessel for 24-hour operations, inclusive of an additional circular area 
to account for radial distance at the start and end of a 24-hour cycle, 
estimates of the total area ensonified to the Level B harassment 
threshold per day of HRG surveys were calculated (Table 22).
    Exposure calculations assumed that there would be 60 days of HRG 
surveying per year over each of the 5 years. As described in the ITA 
application, density data were mapped within the boundary of the 
Project Area using geographic information systems. These data were 
updated based on the revised data from the Duke University density 
models. Because the exact dates of HRG surveys are unknown, the maximum 
average seasonal density values for each marine mammal species was used 
and carried forward in the take calculations (Table 23).
    The calculated exposure estimates based on the exposure modeling 
methodology described above were compared with the best available 
information on marine mammal group sizes. Group sizes used for HRG take 
estimates were the same as those used for impact pile driving take 
estimation (refer back to Table 11). Atlantic Shores also used data 
collected by PSOs on survey vessels operating during HRG surveys in 
their 2020 season in the relevant Project Area. It was determined that 
the calculated number of potential takes by Level B harassment based on 
the exposure modeling methodology above may be underestimates for some 
species and therefore warranted adjustment using group size estimates 
and PSO data to ensure conservatism in the take numbers proposed for 
authorization. Despite the relatively small modeled Level B harassment 
zone (141 m) for HRG survey activities, it was determined that 
adjustments to the requested numbers of take by Level B harassment for 
some dolphin species was warranted (see below).
    For certain species for which the density-based methodology 
described above may result in potential underestimates of take and 
Atlantic Shores' PSO sightings data were relatively low, adjustments to 
the exposure estimates were made based on the best available 
information on marine mammal group sizes to ensure conservatism. For 
species with densities too low in the region to provide meaningful 
modeled exposure estimates, the take request is based on the average 
group size (Table 12). Other adjustments were made based on information 
previously presented in previous IHAs issued to Atlantic Shores. These 
include an estimate of 1.55 individuals of common dolphins per day 
multiplied by the number of survey days annually (i.e., 60 days), which 
is in alignment with what was done in 87 FR 24103 (April 22, 2022) 
based on previous daily observations of common dolphins. Additionally, 
requested take estimates for long-finned pilot whales, Atlantic spotted 
dolphins, and Risso's dolphins were also adjusted based on typical 
group sizes (i.e., 20, 100, and 30 annual takes, respectively), based 
on take numbers from 2020, 2021, and 2022 IHAs issued to Atlantic 
Shores (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable#expired-authorizations). Lastly, adjustments were made for 
short-finned pilot whales based on group size data reported by the OBIS 
data repository (OBIS, 2022). The average group size used was 6 
individuals for short-finned pilot whales.
    The maximum seasonal density used for the HRG survey analysis are 
shown in Table 11 in the Density and Occurrence section. The calculated 
take and the take proposed for authorization (via Level B harassment 
only) is found in Table 23 below.

Table 23--Calculated Exposure and Proposed Take by Level B Harassment During Annual HRG Surveys for the Atlantic
                                          Shores South Survey Area \a\
----------------------------------------------------------------------------------------------------------------
                                                                                               Take proposed for
                                                                                                 authorization
           Marine mammal species                         Stock                  Exposure           (Level B
                                                                                               harassment only)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *...............  Western Atlantic.............                 1                   1
Fin whale *................................  Western North Atlantic.......                 2                   2
Humpback whale.............................  Gulf of Maine................                 1                   1
Minke whale................................  Canadian Eastern Coastal.....                 4                   4
Sei whale *................................  Nova Scotia..................                 1               \b\ 2
Sperm whale *..............................  Western North Atlantic.......                 1                   1
Atlantic spotted dolphin...................  Western North Atlantic.......                 1                 100
Atlantic white-sided dolphin...............  Western North Atlantic.......                 3                   3
Bottlenose dolphin.........................  Northern Migratory Coastal...               113                 113
                                             Western North Atlantic--                    225                 225
                                              Offshore.
Common dolphin.............................  Western North Atlantic.......                14              \d\ 93
Long-finned pilot whale....................  Western North Atlantic.......                 1              \c\ 20
Short-finned pilot whale...................  Western North Atlantic.......                 1               \c\ 6
Risso's dolphin............................  Western North Atlantic.......                 1              \c\ 30
Harbor porpoise............................  Gulf of Maine/Bay of Fundy...                24                  24
Gray seal..................................  Western North Atlantic.......                41                  41
Harbor seal................................  Western North Atlantic.......                91                  91
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ The survey area accounts for waters within and around the Lease Area and the ECRs.
\b\ Atlantic Shores is requesting one additional take of sei whales, for a total of two, based on the average
  group size found in NOAA (2022a) and due to an encounter during their 2020 surveys where a single sei whale
  was observed.
\c\ This adjustment was made in alignment with take that was previously authorized to Atlantic Shores in an
  issued IHA (88 FR 38821, June 14, 2023). As the survey area for this proposed rulemaking overlaps the survey
  area for that IHA the same group size assumptions were used in this analysis.

[[Page 65484]]

 
\d\ This adjustment was made in alignment with the take that was previously authorized to Atlantic Shores in an
  issued IHA (88 FR 38821, June 14, 2023) where an average take of 1.5 individuals per day was multiplied by the
  total number of survey days (i.e., 60 days).

Total Take Across All Activities

    The amount of Level A harassment and Level B harassment NMFS 
proposes to authorize incidental to all project activities combined 
(i.e., impact pile driving to install WTG, OSS, and Met tower 
foundations; vibratory pile driving to install and subsequently remove 
temporary cofferdams, and HRG surveys) are shown below. The annual 
amount of take that is expected to occur in each year based on Atlantic 
Shores' current schedules is provided in Table 24. The Year 1 take 
estimates include temporary cofferdam installation and HRG surveys. 
Year 2 includes foundation installation, temporary cofferdam 
installation, and HRG surveys. Year 3 includes take for foundation 
installation and HRG surveys. Year 4 and Year 5 each include HRG 
surveys. However, NMFS recognizes that schedules may shift due to a 
number of planning and logistical constraints such that take may be 
redistributed throughout the 5 years. However, the 5-year total amount 
of take for each species, shown in Table 25, and the maximum amount of 
take in any 1 year (Table 26) may not be exceeded.
    The amount of take that Atlantic Shores requested, and NMFS 
proposes to authorize, is substantially conservative. For the species 
for which modeling was conducted, the take estimates are conservative 
for a number of reasons. The amount of take proposed to be authorized 
assumes the worst case scenario with respect to project design and 
schedules. As described in the Detailed Description of Specified 
Activities section and the applicant's PDE Refinement memo, Atlantic 
Shores may use suction-buckets or gravity-based structures to install 
the foundations for the Met Tower, and may use suction-buckets for each 
of the OSSs rather than monopiles or jacket foundations (depending on 
the size OSS used). Should Atlantic Shores decide to use these 
different foundations, take of marine mammals 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). All calculated take incorporated the maximum average 
densities for any given species in any given season. The amount of 
proposed Level A harassment does 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, or the effectiveness of the proposed monitoring and 
mitigation measures (with the exception of North Atlantic right whales 
given the enhanced mitigation measures proposed for this species).

[[Page 65485]]



                      Table 24--Proposed Level A Harassment and Level B Harassment Takes for All Activities Proposed To Be Conducted Annually for the Project Over 5 Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Year 1 (2025)             Year 2 (2026)             Year 3 (2027)             Year 4 (2028)             Year 5 (2029)
                                                    NMFS stock ---------------------------------------------------------------------------------------------------------------------------------
     Marine mammal species            Stock         abundance     Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B
                                                       \a\       harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *    Western Atlantic.          338            0            5            0            9            0            5            0            1            0            1
 \b\ \d\.
Fin whale * \d\...............  Western North            6,802            0            4            3           16            4           12            0            2            0            2
                                 Atlantic.
Humpback whale................  Gulf of Maine....        1,396            0            3            3           15            4           11            0            1            0            1
Minke whale...................  Canadian Eastern        21,968            0            6           11          159           17          146            0            4            0            4
                                 Coastal.
Sei whale \*\ \b\ \d\.........  Nova Scotia......        6,292            0            5            1            8            1            5            0            2            0            2
Sperm whale \*\ \b\ \d\.......  Western North            4,349            0            3            0            5            0            3            0            1            0            1
                                 Atlantic.
Atlantic spotted dolphin \b\    Western North           39,921            0          200            0          300            0          200            0          100            0          100
 \c\ \d\.                        Atlantic.
Atlantic white-sided dolphin    Western North           93,233            0           25            1          185            1          175            0            3            0            3
 \d\.                            Atlantic.
Bottlenose dolphin............  Western North           62,851            0          225            0        3,634            0        3,642            0          225            0          225
                                 Atlantic--Offsho
                                 re.
                                Northern                 6,639            0        1,949            0          772            0          127            0          113            0          113
                                 Migratory
                                 Coastal \b\.
Common dolphin \e\............  Western North          172,974            0          100            0          360            0          250            0           93            0           93
                                 Atlantic.
Long-finned pilot whale \b\     Western North           39,215            0           26            0           46            0           40            0           20            0           20
 \c\ \d\.                        Atlantic.
Short-finned pilot whale \b\    Western North           28,924            0            8            0           14            0           12            0            6            0            6
 \c\ \d\.                        Atlantic.
Risso's dolphin \b\ \c\ \d\...  Western North           35,215            0           50            1           80            1           60            0           30            0           30
                                 Atlantic.
Harbor porpoise...............  Gulf of Maine/Bay       95,543            0           35            2          173           13           64            0           24            0           24
                                 of Fundy.
Gray seal.....................  Western North           27,300            0          155            1          299            2          136            0           41            0           41
                                 Atlantic.
Harbor seal...................  Western North           61,336            0          345            2          684            8          305            0           91            0           91
                                 Atlantic.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ NMFS 2022 final SARs (Hayes et al., 2023) were used for the stock abundances.
\b\ The take estimate by Level B harassment for foundation installation via impact pile driving was rounded up to one average group size; impact pile driving is scheduled to occur during Year
  2 and Year 3 of the proposed rulemaking. While the foundation installation (Tables 17 and 18) counted the six WTGs in the Overlap Area for both Project 1 and Project 2, the take by Level A
  harassment or Level B harassment requested (Table 19) is based on those six WTGs occurring under Project 2; no double counting of take occurred.
\c\ The take estimate by Level B harassment for HRG surveys was rounded up to one group size; HRG surveys are planned to occur during the entire 5-year period of the proposed rulemaking.
\d\ The take estimate by Level B harassment for temporary cofferdams via vibratory pile driving was rounded up to one group size; temporary cofferdam installation and removal is expected to
  occur during Year 1 and 2 of the proposed rulemaking.
\e\ The take estimate by Level B harassment for common dolphins is derived by the daily sighting rate for previous HRG surveys multiplied by the number of HRG survey or pile driving days that
  would occur for each specific activity.


[[Page 65486]]


   Table 25--Total 5-Year Proposed Takes of Marine Mammals (by Level A Harassment and Level B Harassment) for All Activities Proposed To Be Conducted
                                                         During the Construction of the Project
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                          5-year total
                                                                                                                                            (Level A
             Marine mammal species                            Stock                  NMFS stock     Proposed Level A  Proposed Level B    harassment +
                                                                                      abundance        harassment        harassment          Level B
                                                                                                                                           harassment)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..................  Western Atlantic................               338                 0                21                21
Fin whale *...................................  Western North Atlantic..........             6,802                 7                36                43
Humpback whale................................  Gulf of Maine...................             1,396                 7                31                38
Minke whale...................................  Canadian Eastern Coastal........            21,968                28               319               347
Sei whale *...................................  Nova Scotia.....................             6,292                 2                22                24
Sperm whale *.................................  Western North Atlantic..........             4,349                 0                13                13
Atlantic spotted dolphin......................  Western North Atlantic..........            39,921                 2               391               393
Atlantic white-sided dolphin..................  Western North Atlantic..........            93,233                 0               900               900
Bottlenose dolphin............................  Western North Atlantic--Offshore            62,851                 0             7,951             7,951
                                                Northern Migratory Coastal......             6,639                 0             3,074             3,074
Common dolphin................................  Western North Atlantic..........           172,974                 0               896               896
Long-finned pilot whale.......................  Western North Atlantic..........            39,215                 0               152               152
Short-finned pilot whale......................  Western North Atlantic..........            28,924                 0                46                46
Risso's dolphin...............................  Western North Atlantic..........            35,215                 2               250               252
Harbor porpoise...............................  Gulf of Maine/Bay of Fundy......            95,543                15               320               335
Gray seal.....................................  Western North Atlantic..........            27,300                 3               672               675
Harbor seal...................................  Western North Atlantic..........            61,336                10             1,516             1,526
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.

    To inform both the negligible impact analysis and the small numbers 
determination, NMFS assesses the maximum number of takes of marine 
mammals that could occur within any given year. In this calculation, 
the maximum estimated number of Level A harassment takes in any 1 year 
is summed with the maximum estimated number of Level B harassment takes 
in any 1 year for each species to yield the highest number of estimated 
take that could occur in any year (Table 26). Table 26 also depicts the 
number of takes proposed relative to the abundance of each stock. The 
takes enumerated here represent daily instances of take, not 
necessarily individual marine mammals taken. One take represents a day 
(24-hour period) in which an animal was exposed to noise above the 
associated harassment threshold at least once. Some takes represent a 
brief exposure above a threshold, while in some cases takes could 
represent a longer, or repeated, exposure of one individual animal 
above a threshold within a 24-hour period. Whether or not every take 
assigned to a species represents a different individual depends on the 
daily and seasonal movement patterns of the species in the area. For 
example, activity areas with continuous activities (all or nearly every 
day) overlapping known feeding areas (where animals are known to remain 
for days or weeks on end) or areas where species with small home ranges 
live (e.g., some pinnipeds) are more likely to result in repeated takes 
to some individuals. Alternatively, activities far out in the deep 
ocean or takes to nomadic species where individuals move over the 
population's range without spatial or temporal consistency represent 
circumstances where repeat takes of the same individuals are less 
likely. In other words, for example, 100 takes could represent 100 
individuals each taken on 1 day within the year, or it could represent 
5 individuals each taken on 20 days within the year, or some other 
combination depending on the activity, whether there are biologically 
important areas in the Project Area, and the daily and seasonal 
movement patterns of the species of marine mammals exposed. Wherever 
there is information to better contextualize the enumerated takes for a 
given species is available, it is discussed in the Negligible Impact 
Analysis and Determination and/or Small Numbers sections, as 
appropriate.

Table 26--Maximum Number of Proposed Takes (Level A Harassment and Level B Harassment) That Could Occur in Any One Year of the Project Relative to Stock
                                                                     Population Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                       Maximum  annual
                                                                                                                        take (maximum     Total percent
                                                                                   Maximum annual    Maximum annual        Level A       stock taken in
         Marine mammal species                    Stock             NMFS stock         Level A           Level B        harassment +      any one year
                                                                     abundance       harassment        harassment      maximum Level B  based on maximum
                                                                                                                        harassment in      annual take
                                                                                                                        any one year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..........  Western Atlantic........             338                 0                 9                 9              2.66
Fin whale *...........................  Western North Atlantic..           6,802                 4                16                20              0.29
Humpback whale........................  Gulf of Maine...........           1,396                 4                15                19              1.36
Minke whale...........................  Canadian Eastern Coastal          21,968                17               159               176              0.80
Sei whale *...........................  Nova Scotia.............           6,292                 1                 8                 9              0.14
Sperm whale *.........................  Western North Atlantic..           4,349                 0                 5                 5              0.11
Atlantic spotted dolphin..............  Western North Atlantic..          39,921                 0               300               300              0.75
Atlantic white-sided dolphin..........  Western North Atlantic..          93,233                 1               185               186              0.20
Bottlenose dolphin....................  Western North Atlantic--          62,851                 0             3,634             3,634              5.78
                                         Offshore.
                                        Northern Migratory                 6,639                 0             1,949             1,949             29.36
                                         Coastal.
Common dolphin........................  Western North Atlantic..         172,974                 0               360               360              0.21
Long-finned pilot whale...............  Western North Atlantic..          39,215                 0                46                46              0.12
Short-finned pilot whale..............  Western North Atlantic..          28,924                 0                14                14              0.05
Risso's dolphin.......................  Western North Atlantic..          35,215                 1                80                81              0.23

[[Page 65487]]

 
Harbor porpoise.......................  Gulf of Maine/Bay of              95,543                13               173               186              0.19
                                         Fundy.
Gray seal.............................  Western North Atlantic..          27,300                 2               299               301              1.10
Harbor seal...........................  Western North Atlantic..          61,336                 8               684               692              1.13
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.

Proposed Mitigation

    In order to promulgate a rulemaking under section 101(a)(5)(A) of 
the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable adverse impact on the species or stock and its habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance, and on the availability of the species or stock 
for taking for certain subsistence uses (latter not applicable for this 
action). NMFS' regulations require applicants for incidental take 
authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting the activity or other means of effecting the least 
practicable adverse impact upon the affected species or stocks and 
their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and,
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous incidental take 
authorizations issued in association with in-water construction 
activities (e.g., soft-start, establishing shutdown zones). Additional 
measures have also been incorporated to account for the fact that the 
proposed construction activities would occur offshore. Modeling was 
performed to estimate harassment zones, which were used to inform 
mitigation measures for 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 proposed 
to be 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, and HRG surveys. Details on 
specific requirements can be found in Part 217--Regulations Governing 
The Taking And Importing Of Marine Mammals at the end of this proposed 
rulemaking.

Training and Coordination

    NMFS requires all Atlantic Shores' employees and contractors 
conducting activities on the water, including, but not limited to, all 
vessel captains and crew, to be trained in marine mammal detection and 
identification, communication protocols, and all required measures to 
minimize impacts on marine mammals and support Atlantic Shores' 
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, Atlantic 
Shores 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., are 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

[[Page 65488]]

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. Atlantic Shores will provide 
documentation of training to NMFS.

North Atlantic Right Whale Awareness Monitoring

    Atlantic Shores would be required to 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 Atlantic Shores' 
efforts), and allows for planning of construction activities, when 
practicable, to minimize potential impacts on North Atlantic right 
whales.

Vessel Strike Avoidance Measures

    This proposed 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 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 we propose are described generally here and in 
detail in the regulation text at the end of this proposed rule (see 50 
CFR 217.264(b)). Atlantic Shores would 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, Atlantic Shores' personnel would be 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; a 100 m zone 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 would be 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, Atlantic Shores would be required to monitor the crew 
transfer vessel transit corridor (the path crew transfer vessels take 
form 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 
will 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 Atlantic Shores 
must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS 
Office of Protected Resources prior to initiating in-water activities. 
Atlantic Shores will submit a NMFS-approved North Atlantic Right Whale 
Vessel Strike Avoidance Plan at least 90 days prior to commencement of 
vessel use.
    Atlantic Shores' compliance with these proposed measures would 
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

[[Page 65489]]

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 proposing to require seasonal work restrictions to minimize 
risk of noise exposure to the 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. In addition, NMFS is proposing to 
require that Atlantic Shores 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. Atlantic Shores has proposed to 
construct the cofferdams in 2025 and 2026 of the effective period of 
the regulations and LOA. However, NMFS is not requiring any seasonal 
restrictions due to the relatively short duration of work and low 
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 11 km (36,089.2 ft), we expect 
that exposure to vibratory pile driving during cofferdam installation 
would be unlikely, and that if exposures occur, they will occur at 
levels consistent with only the Level B harassment threshold, and for 
only short durations given that large whales, if present, would likely 
be moving through the area in migration. NMFS is not proposing any 
seasonal restrictions to HRG surveys; however, Atlantic Shores would 
only perform a specific amount of 24-hour survey days within the 
proposed effective period of these regulations.
    NMFS is also requiring temporal restrictions for some activities. 
Within any 24-hour period, Atlantic Shores would be limited to 
installing up to 2 monopile foundations or 4 pin piles. Atlantic Shores 
has requested to initiate pile driving during nighttime when detection 
of marine mammals is visually challenging. To date, Atlantic Shores has 
not submitted a plan containing the information necessary, including 
evidence, that their proposed systems are capable of detecting marine 
mammals, particularly large whales, at distances necessary to ensure 
mitigation measures are effective and, in general, the scientific 
literature on these technologies demonstrate there is a high degree of 
uncertainty in reliably detecting marine mammals at distances necessary 
for this project. Therefore, NMFS is not proposing, at this time, to 
allow Atlantic Shores to initiate pile driving later than 1.5 hours 
after civil sunset or 1 hour before civil sunrise. We are, however, 
proposing to encourage and allow Atlantic Shores the opportunity to 
further investigate and test advanced technology detection systems to 
support their request. NMFS is proposing to condition the LOA such that 
nighttime pile driving would only be allowed if Atlantic Shores submits 
an Alternative Monitoring Plan to NMFS for approval that proves the 
efficacy of their night vision devices (e.g., mounted thermal/infrared 
(IR) camera systems, hand-held or wearable night vision devices (NVDs), 
IR spotlights) in detecting protected marine mammals. If the plan does 
not include a full description of the proposed technology, monitoring 
methodology, and data supporting that marine mammals can reliably and 
effectively be detected within the clearance and shutdown zones for 
monopiles and pin piles before and during impact pile driving, 
nighttime pile driving (unless a pile was initiated 1.5 hours prior to 
civil sunset) will not be allowed. The Plan should identify the 
efficacy of the technology at detecting marine mammals in the clearance 
and shutdowns under all the various conditions anticipated during 
construction, including varying weather conditions, sea states, and in 
consideration of the use of artificial lighting. Any and all vibratory 
pile driving associated with cofferdams installation and removal would 
only be able to occur during daylight hours. 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 proposing 
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 
proposed rulemaking.

Noise Abatement Systems

    Atlantic Shores would be required to employ noise abatement systems 
(NAS), also known as noise attenuation systems, during all foundation 
installation (i.e., impact pile driving) activities to reduce the sound 
pressure levels that are transmitted through the water in an effort to 
reduce acoustic ranges to the Level A harassment and Level B harassment 
acoustic thresholds and minimize, to the extent practicable, any 
acoustic impacts resulting from these activities. Atlantic Shores would 
be 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 (other available 
NAS technologies are the hydro-sound damper, or an AdBm Helmholz 
resonator), as well as the adjustment of operational protocols to 
minimize noise levels. A single bubble curtain, alone or in combination 
with another NAS device, may not be used for pile driving as received 
SFV data reveals this approach is unlikely to attenuate sound 
sufficiently to be consistent with the modeling underlying our take 
analysis here, which incorporates expected ranges to the Level A and 
Level B harassment isopleths assuming 10-dB of attenuation and 
appropriate NAS use. Should the research and development phase of newer 
systems demonstrate effectiveness, as part of adaptive management, 
Atlantic Shores may submit data on the effectiveness of these systems 
and request approval from NMFS to use them during foundation 
installation 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

[[Page 65490]]

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 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 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, installation, and operation. For example, 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 big bubble curtains (BBCs) for noise attenuation. When a 
double big bubble curtain is used (noting a single bubble curtain is 
not allowed), Atlantic Shores would be required to maintain numerous 
operational performance standards. These standards are defined in the 
regulatory text at the end of this proposed rulemaking and include, but 
are not limited to: construction contractors must train personnel in 
the proposed balancing of airflow to the bubble ring and Atlantic 
Shores would be required to 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. In 
addition, a full maintenance check (e.g., manually clearing holes) must 
occur prior to each pile being installed. If Atlantic Shores uses a 
noise mitigation device in addition to a double big bubble curtain, 
similar quality control measures are required.
    Atlantic Shores would be required to submit an SFV plan to NMFS for 
approval at least 180 days prior to installing foundations. They would 
also be 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 would 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 and 
cofferdam (sheet pile) installation/removal. Regarding cofferdam sheet 
pile installation and removal, NAS is not practicable to implement due 
to the physical nature of linear sheet 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 
Atlantic Shores would be 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 is proposing to require the establishment of both clearance 
and 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 proposed 
rulemaking). At least one PAM operator must review data from at least 
24 hours prior to foundation installation and 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 mammals 
(foundation installation, cofferdam install and removal, and HRG 
surveys), Atlantic Shores would be required to ensure designated areas 
(i.e., clearance zones, Tables 27, 28, and 29) are clear of marine 
mammals prior to commencing activities to minimize the potential for 
and degree of harassment. For foundation installation, 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 of a minimum of 100 m (whichever is 
greater). For foundation installation, the minimum visibility zone 
would extend 1,900 m (6,233.6 ft) from the pile (Table 27). This value 
corresponds to the modeled maximum

[[Page 65491]]

ER95 distances to the Level A harassment threshold 
for low-frequency cetaceans, assuming 10 dB of attenuation.
    For cofferdam vibratory pile driving and HRG surveys, monitoring 
must be conducted for 30 minutes prior to initiating activities and the 
clearance zones (Tables 28 and 29) 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, Atlantic Shores 
would be 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.
    In situations when shutdown is called for but Atlantic Shores 
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 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. 
Atlantic Shores 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, impact 
pile driving may be reinitiated but 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 
for30 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 27, Table 28, and Table 29. Atlantic Shores would be allowed 
to request modification to these zone sizes pending results of sound 
field verification (see regulatory text at the end of this proposed 
rulemaking). Any changes to zone size would be part of adaptive 
management and would require NMFS' approval.

                       Table 27--Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones During Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     North Atlantic right                             Delphinids and pilot
         Monitoring zone                    whales              Other large whales           whales            Harbor porpoises            Seals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum Visibility Zone \a\.....                                                         1,900 m.
                                 -----------------------------------------------------------------------------------------------------------------------
Clearance Zone \c\..............  Any distance..............  2,300 m..............  100 m \b\............  1,800 m..............  400 m.
Shutdown Zone \c\...............  Any distance..............  1,900................  100 m \d\............  1,500 m..............  350.
                                 -----------------------------------------------------------------------------------------------------------------------
PAM Monitoring Zone.............                                                         10,000 m.
                                 -----------------------------------------------------------------------------------------------------------------------
Level B Harassment (Acoustic                                              Monopiles: 8,300 m; Pin Piles: 5,500 m.
 Range, R95%).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ 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.
\b\ 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).
\c\ This zone applies to both visual and PAM.
\d\ The exposure ranges (ER95%) presented for delphinid species and pilot whale spp. were either all zero or near-zero. However, to ensure a protective
  zone, NMFS is requiring a 100 m (328 ft) clearance zone.


    Table 28--Temporary Cofferdam Vibratory Installation and Removal
                      Clearance and Shutdown Zones
------------------------------------------------------------------------
                                                         Clearance and
                Marine mammal species                    shutdown zones
                                                              (m)
------------------------------------------------------------------------
North Atlantic right whale--visual detection.........                100
All other large marine mammals.......................                100
Delphinids and Pilot whales..........................                 50
Harbor porpoise......................................            \a\ 540
Seals................................................                 60
------------------------------------------------------------------------
\a\ Harbor porpoise is unlikely to be near the nearshore environment.


[[Page 65492]]


                      Table 29--HRG Survey Clearance, Shutdown, and Vessel Separation Zones
----------------------------------------------------------------------------------------------------------------
                                                           Clearance zone                      Vessel separation
                 Marine mammal species                        (m) \2\       Shutdown zone (m)       zone (m)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale.............................                500                500                500
Other ESA-listed species (i.e., fin, sei, sperm whale).                500                100                100
Other marine mammals \1\...............................                100                100                 50
----------------------------------------------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera Delphinus, Lagenorhynchus, Stenella or
  Tursiops, as described below.
\2\ For HRG surveys, Atlantic Shores did not propose clearance zones, although they are referenced in the ITA
  application and in their Protected Species Management and Equipment Specifications Plan (PSMESP). Because of
  this, NMFS instead proposes Clearance Zones of 500 m (1,640 ft; for NARW), 500 m (1,640 ft; for all other ESA-
  listed species); and 100 m (328 ft; for all other marine mammals, with exceptions noted for specific bow-
  riding delphinids). These zones are considered for protection for protected species, given the extensive
  vessel presence in and around the Project Area.

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. Atlantic Shores would 
be required to utilize a soft-start protocol for impact pile driving of 
monopiles and pin piles 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. Atlantic Shores will reduce energy based on 
consideration of site-specific soil properties and other relevant 
operational considerations. A soft-start during vibratory pile driving 
of sheet piles would be accomplished by varying hammer frequency and/or 
amplitude. The final methodology will be developed by Atlantic Shores 
considering final design details including site specific soil 
properties and other considerations. HRG survey operators would be 
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.
    Soft-start and ramp-up would 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 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 Atlantic Shores' fishery monitoring surveys 
impacting marine mammals is minimal, NMFS proposed to require Atlantic 
Shores 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 would be required 
to receive protected species identification training prior to 
activities occurring and attend the aforementioned onboarding training. 
The specific requirements that NMFS would set for the fishery 
monitoring surveys can be found in the regulatory text at the end of 
this proposed rulemaking.
    Based on our evaluation of the mitigation measures, as well as 
other measures considered by NMFS, NMFS has preliminarily determined 
that these proposed measures would 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.

Proposed Monitoring and Reporting

    In order to promulgate a rulemaking for an activity, section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA 
implementing regulations at 50 CFR 216.104(a)(13) indicate that 
requests for authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area. Effective reporting is critical 
both to compliance as well as ensuring that the most value is obtained 
from the required monitoring.
     Monitoring and reporting requirements prescribed by NMFS 
should contribute to improved understanding of one or more of the 
following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
     Mitigation and monitoring effectiveness.
    Separately, monitoring is also regularly used to support mitigation 
implementation, which is referred to as mitigation monitoring, and 
monitoring plans typically include measures that both support 
mitigation implementation and increase our understanding of the impacts 
of the activity on marine mammals.
    During the planned activities, visual monitoring by NMFS-approved 
PSOs would be conducted before, during, and after all impact pile 
driving, vibratory pile driving, and HRG surveys. PAM would be also 
conducted during impact

[[Page 65493]]

pile driving. 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 would record all incidents of marine mammal 
occurrence at any distance from the piling locations, near the HRG 
acoustic sources. 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

    Atlantic Shores would be 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 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 would 
require Atlantic Shores to conduct PAM using PAM operators during 
impact pile driving 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, together, and 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 with 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). As there are no ``perfect fit'' 
single-optimal-array configurations, NMFS will consider and approve 
these set-ups, as appropriate, on a case-by-case basis. Specifically, 
Atlantic Shores will be required to provide a plan that describes an 
optimal configuration for collecting the required marine mammal data, 
based on the real world circumstances in the project area, recognizing 
that we will continue to learn more as monitoring results from other 
wind projects are submitted.
    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 proposed 
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 proposed rulemaking.
    Conditionally-approved PSOs and PAM operators would be paired with 
an unconditionally-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. Atlantic Shores 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 Atlantic Shores at least 30 days prior to the start of 
the project. Should Atlantic Shores require additional PSOs or PAM 
operators throughout the project, Atlantic Shores 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. The types of 
equipment required (e.g., Big Eye binoculars 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 proposed 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; 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

[[Page 65494]]

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 proposed 
rulemaking.
    Atlantic Shores would be required to submit a Pile Driving 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 
use. 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 
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 
proposed rulemaking. Additional information can be found in Atlantic 
Shores' Protected Species Management and Equipment Specifications Plan 
(PSMESP; Appendix E) found in their ITA application on NMFS' website at 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-construction-atlantic-shores.

Sound Field Verification

    Atlantic Shores would be required to conduct SFV measurements 
during 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 monopiles 
and three entire jacket foundations demonstrate noise levels are at or 
below those modeled, assuming 10-decibels (dB) of attenuation. 
Subsequent SFV measurements would also be required should larger piles 
be installed or if additional piles are driven that are anticipated to 
produce louder sound fields 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 proposed rulemaking. The proposed 
requirements are extensive to ensure monitoring is conducted 
appropriately and the reporting frequency is such that Atlantic Shores 
would be required to make adjustments quickly (e.g., add additional 
sound attenuation) to 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, Atlantic Shores 
would provide a report to NMFS Office of Protected Resources that 
demonstrates that all required training for Atlantic Shores 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 
Atlantic Shores 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. Atlantic Shores would be 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 proposed rulemaking.
    Weekly Report--During foundation installation activities, Atlantic 
Shores 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--Atlantic Shores would be 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--Atlantic Shores would be 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--Atlantic Shores would be required to 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 would require 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

[[Page 65495]]

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, Atlantic Shores would be required to 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 consistent with the adaptive management 
provisions described below and codified at Sec.  217.307. Atlantic 
shores could 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. Atlantic Shores must immediately report 
the strike incident. If the strike occurs in the Greater Atlantic 
Region (Maine to Virginia), Atlantic Shores must call the NMFS Office 
of Protected Resources and GARFO. Atlantic Shores would be required to 
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. Atlantic Shores 
may, consistent with the adaptive management provisions described below 
and codified at Sec.  217.307, not resume their activities until 
notified by NMFS.
    In the event of any lost gear associated with the fishery surveys, 
Atlantic Shores 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 proposed rulemaking in the 
regulatory text.
    Sound Field Verification--Atlantic Shores would be required to 
submit interim SFV reports after each foundation installation is 
completed as soon as possible but within 48 hours. A final SFV report 
for all monopile and jacket foundation installation monitoring would be 
required within 90 days following completion of acoustic monitoring.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Atlantic Shores' construction activities contain an adaptive management 
component. Our understanding of the effects of offshore wind 
construction activities (e.g., acoustic 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 Atlantic Shores 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, Atlantic 
Shores (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, we estimated the maximum number of 
takes by Level A harassment and Level B harassment that could occur 
from Atlantic Shores' 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 proposed rule, we evaluate the likely 
impacts of the enumerated harassment takes that are authorized in the 
context of the specific circumstances

[[Page 65496]]

surrounding these predicted takes. We also collectively evaluate this 
information, as well as other more taxa-specific information and 
mitigation measure effectiveness, in group-specific discussions that 
support our negligible impact conclusions for each stock. As described 
above, no serious injury or mortality is expected or proposed to be 
authorized for any species or stock.
    The Description of the Specified Activities section describes 
Atlantic Shores' specified activities proposed for the project that may 
result in take of marine mammals and an estimated schedule for 
conducting those activities. Atlantic Shores South 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 25 and 
26, respectively.
    We base our analysis and preliminary negligible impact 
determination on the maximum number of takes that could occur and are 
proposed to be 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 4 given that some of the anticipated 
effects of Atlantic Shores' 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 
the population status. Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of Atlantic Shores' 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, Met 
Tower, and OSS foundation installation, which would occur largely 
within the first 2 to 3 years (2025 through 2026 or 2027). 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 24, 25, and 26).
    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 
detonations). The amount of harassment Atlantic Shores has requested, 
and NMFS proposes to authorize, is based on exposure models that 
consider the outputs of acoustic source and 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 proposed to be 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 proposed to be 
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 of Specified 
Activities on Marine Mammals and their Habitat section, the intensity 
and duration of any impact resulting from exposure to Atlantic Shores' 
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 Atlantic 
Shores' 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

[[Page 65497]]

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 30 m in the ECRs, and 19 to 37 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 
Atlantic Shores 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 
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 Atlantic Shores, 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 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 impact 
pile driving for foundation installation is anticipated to be most 
impactful for these reasons, impacts are minimized 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. All these measures are designed to 
avoid or minimize harassment. 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 will increase the 
overall capability to detect marine mammals compared to one method 
alone.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if 
some smaller subset of the takes are in the form of a longer (several 
hours or a day) and more severe response, if they are not expected to 
be repeated over numerous or sequential days, impacts to individual 
fitness are not anticipated. 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 Atlantic Shores' activities and, as described 
earlier, the proposed takes by Level B harassment may represent takes 
in the form of behavioral disturbance, TTS, or both. As discussed in 
the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat section, in general, TTS can last from a few minutes to 
days, be of varying degree, and occur across different frequency 
bandwidths, all of which determine the severity of the impacts on the 
affected individual, which can range from minor to more severe. Impact 
and vibratory pile driving 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 Atlantic Shores' pile driving 
activities would not typically span the entire frequency range of one 
vocalization type, much less span all types of vocalizations or other 
critical auditory cues for any given species. However, the proposed 
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 
(refer back to Estimated Take). However, source level alone is not a 
predictor of TTS. An animal would have to approach closer to the source 
or remain in the vicinity of the sound source appreciably longer to 
increase the received SEL, which would be difficult considering the 
proposed mitigation and the nominal speed of the receiving animal 
relative to the stationary sources such as impact pile

[[Page 65498]]

driving. The recovery time of TTS is also of importance when 
considering the potential impacts from TTS. In TTS laboratory studies 
(as discussed in Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat), some using exposures of almost an hour in 
duration or up to 217 SEL, almost all individuals recovered within 1 
day (or less, often in minutes), and we note that while the pile-
driving activities last for hours a day, it is unlikely that most 
marine mammals would stay in the close vicinity of the source long 
enough to incur more severe TTS. Overall, given the small number of 
time 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 proposes to authorize, a very small amount of take by PTS to 
some marine mammal individuals. The numbers of proposed annual takes by 
Level A harassment are relatively low for all marine mammal stocks and 
species (Table 25). The only activities incidental to which we 
anticipate PTS may occur is from exposure to impact pile driving, 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 (i.e., the low-
frequency region below 2 kHz) (Cody and Johnstone, 1981; McFadden, 
1986; Finneran, 2015), not severe hearing impairment. If hearing 
impairment occurs from impact pile driving, it is most likely that the 
affected animal would lose a few decibels in its hearing sensitivity, 
which in most cases is not likely to meaningfully affect its ability to 
forage and communicate with conspecifics. 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 
Atlantic Shores' 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. Therefore, we are not predicting take due to masking effects, 
and are not proposing to authorize such take.

Impacts on Habitat and Prey

    Construction activities may result in fish and invertebrate 
mortality or injury very close to the source, and all of Atlantic 
Shores' 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 would further limit the degree of impact. 
Behavioral changes in prey in response to construction activities could 
temporarily impact marine mammals' foraging opportunities in a limited 
portion of the foraging range but, because of the relatively small area 
of the habitat that may be affected at any given time (e.g., around a 
pile being driven), the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Cable presence 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 (Schultze et al., 2020; Chen et al., 
2021; Johnson et al., 2021; Christiansen et al., 2022; Dorrell et al., 
2022).

[[Page 65499]]

    As discussed in the Potential Effects of Specified Activities on 
Marine Mammals and their Habitat section, the project would consist of 
no more than 211 foundations (200 WTGs, 10 OSS, 1 Met Tower) in the 
Lease Area, which will gradually become operational following 
construction completion. While there are likely to be oceanographic 
impacts from the presence of operating turbines, meaningful 
oceanographic impacts relative to stratification and mixing that would 
significantly affect marine mammal habitat and prey over large areas in 
key foraging habitats are not anticipated from the Atlantic Shores 
activities covered under these proposed regulations. For these reasons, 
if oceanographic features are affected by the project during the 
effective period of the proposed regulations, the impact on marine 
mammal habitat and their prey is likely to be comparatively minor; 
therefore, we are not predicting take due to habitat and prey impacts, 
and are not proposing to authorize such take.

Mitigation To Reduce Impacts on All Species

    This proposed rulemaking includes a variety of mitigation measures 
designed to minimize impacts on all marine mammals, with a focus on 
North Atlantic right whales (the latter is described in more detail 
below). For impact pile driving of foundation piles, nine overarching 
mitigation measures are proposed, which are intended to reduce both the 
number and intensity of marine mammal takes: (1) seasonal/time of day 
work restrictions; (2) use of multiple PSOs to visually observe for 
marine mammals (with any detection within specifically designated zones 
triggering 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 Atlantic Shores' 
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 
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 Atlantic Shores' 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 Atlantic Shores' personnel must be reported to PSOs.
    NMFS prescribes mitigation measures based on the following 
rationale. For activities with large harassment isopleths, Atlantic 
Shores would be required to reducing the noise levels generated to the 
lowest levels practicable and would be 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 
(Atlantic Shores would 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, clearance zone and 
shutdown zone implementation, which are required when marine mammals 
are within given distances associated with certain impact thresholds 
for all activities, would reduce the magnitude and severity of marine 
mammal take. Additionally, the use of multiple PSOs (WTG, OSS, and Met 
Tower foundation installation; temporary cofferdam installation and 
removal; HRG surveys), PAM (for impact foundation installation), and 
maintaining awareness of marine mammal sightings reported in the region 
(WTG, OSS, and Met Tower foundation installation; temporary cofferdam 
installation and removal; HRG surveys) would aid in detecting marine 
mammals that would trigger the implementation of the mitigation 
measures. The reporting requirements, including SFV reporting (for 
foundation installation and foundation operation), will assist NMFS in 
identifying if impacts beyond those analyzed in this proposed rule are 
occurring, potentially leading to the need to enact adaptive management 
measures in addition to or in the place of the proposed mitigation 
measures.

Mysticetes

    Five mysticete species (comprising five stocks) of cetaceans (North 
Atlantic right 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 grounds 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, 
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

[[Page 65500]]

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.
    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 25) 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 Atlantic Shores 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 proposed to be 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 stocks under the MMPA. As described 
in the Potential Effects of the Specified Activities on Marine Mammals 
and Their Habitat section, 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 proposed for authorization for this 
species.
    For North Atlantic right whales, this proposed rule would allow for 
the authorization of up to 21 takes, by Level B harassment only, over 
the 5-year period, with a maximum annual allowable take by Level B 
harassment, would be 9 (equating to approximately 2.66 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 where 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 9). 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 Project 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, and 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 would occur (given the seasonal restrictions on 
foundation installation, 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 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 of Specified Activities, North Atlantic right whales are presently

[[Page 65501]]

experiencing an ongoing UME (beginning in June 2017). Preliminary 
findings support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of North Atlantic 
right whales. Given the current status of the North Atlantic right 
whale, the loss of even one individual could significantly impact the 
population. No mortality, serious injury, or injury of North Atlantic 
right whales as a result of the project is expected or proposed to be 
authorized. Any disturbance to North Atlantic right whales due to 
Atlantic Shores' 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 225 days (201 for WTG/Met Tower 
monopile/jacket foundations and 24 for OSS jacket foundations) 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 proposed 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 of Specified Activities on 
Marine Mammals and Their Habitat section, the distance of the receiver 
to the source influences the severity of response with greater 
distances typically eliciting less severe responses. 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 of 
Specified Activities on Marine Mammals and Their Habitat section, we 
anticipate that course diversion would be of small magnitude. Hence, 
while some avoidance of the pile driving activities may occur, we 
anticipate any avoidance behavior of migratory 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 proposed 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, Atlantic Shores has proposed and NMFS is proposing 
to require a suite of mitigation measures designed to reduce impacts to 
North Atlantic right whales to the maximum extent practicable. These 
mitigation measures (e.g., seasonal/daily work restrictions, vessel 
separation distances, reduced vessel speed) would not only avoid the 
likelihood of 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, Atlantic Shores 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 of Specified Activities section,

[[Page 65502]]

Atlantic Shores 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 extremely small compared with the migratory 
BIA area (approximately 413 km\2\ for OCS-A 0499 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 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 occurring 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). NMFS expects that exposures to North Atlantic right 
whales would be reduced due to the additional proposed mitigation 
measures that would ensure that any exposures above the Level B 
harassment threshold would result in only short-term effects to 
individuals exposed.
    Pile driving may only begin in the absence of North Atlantic right 
whales (based on visual and passive acoustic monitoring). If pile 
driving has 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 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 proposed mitigation measures (e.g., delay pile 
driving upon a sighting or acoustic detection and shutting down upon a 
sighting or acoustic detection), the potential for TTS to occur is low.
    The proposed clearance and shutdown measures are most effective 
when detection efficiency is maximized, as the measures are triggered 
by a sighting or acoustic detection. To maximize detection efficiency, 
Atlantic Shores proposed, and NMFS is proposing to require, the 
combination of PAM and visual observers. NMFS is proposing to require 
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.
    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 proposed 
mitigation requirements, take by Level A harassment is unlikely and, 
therefore, not proposed for authorization. Potential impacts associated 
with Level B harassment would include low-level, temporary behavioral 
modifications, most likely in the form of avoidance behavior. Given the 
high level of precautions taken to minimize both the amount and 
intensity of Level B harassment on North Atlantic right whales, it is 
unlikely that the anticipated low-level exposures would lead to reduced 
reproductive success or survival.
    As described above, no serious injury or mortality, or Level A 
harassment, of North Atlantic right whale is anticipated or proposed 
for authorization. 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 to be taken (including no more 
than 21 instances of take, by Level B harassment only, over the course 
of the 5-year rule, with an annual maximum of no more than 9) 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 proposed mitigation and other information 
presented, Atlantic Shores' 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 preliminarily determined that the take (by Level B harassment 
only) anticipated and proposed for authorization would have a 
negligible impact on the North Atlantic right whale.

Fin Whale

    The fin whale is listed as Endangered under the ESA, and the 
western North

[[Page 65503]]

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 proposed for authorization for 
this species.
    The proposed rule would allow for the authorization of up to 43 
takes, by Level A harassment and Level B harassment, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment, would be 4 and 16, respectively (combined, this 
annual take (n=20) equates to approximately 0.29 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 43 takes, by Level A harassment and Level B 
harassment, 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 
16, respectively), and in consideration of the proposed mitigation and 
other information presented, Atlantic Shores' proposed 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 preliminarily determined that the 
take (by Level A harassment and Level B harassment) anticipated and 
proposed to be authorized would 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 of Specified Activities, 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 proposed to be authorized. Despite the UME, the 
relevant population of humpback whales (the West Indies breeding 
population, or DPS of which the Gulf of Maine stock is a part) remains 
stable at approximately 12,000 individuals.
    The proposed rule would allow for the authorization of up to 38 
takes, by Level A harassment and Level B harassment, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment, would be 4 and 15, respectively (combined, this 
maximum annual take (n=19) equates to approximately 1.36 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 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 of (n=4) 
humpback whales. The maximum amount of annual take proposed to be 
authorized (n=15), by Level B harassment, is highest for impact pile 
driving.
    As described in the Description of Marine Mammals in the Geographic 
Area of Specified Activities 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, 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 that 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

[[Page 65504]]

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 38 takes 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 15, respectively), and in consideration of the 
proposed mitigation measures and other information presented, Atlantic 
Shores' 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 
preliminarily determined that the take by harassment anticipated and 
proposed to be authorized would 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 of Specified Activities, a UME has been 
designated for this species but is pending closure. No serious injury 
or mortality is anticipated or proposed for authorization for this 
species.
    The proposed rule would allow for the authorization of up to 347 
takes, by Level A harassment and Level B harassment, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment, would be 17 and 159, respectively (combined, this 
annual take (n=176) equates to approximately 0.80 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 of Specified Activities 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 of Specified Activities section, there is a UME for minke whales 
along the Atlantic Coast from Maine through South Carolina, with the 
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 proposed for 
authorization 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 347 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of 17 and 159, respectively), and in consideration of the 
proposed mitigation measures and other information presented, Atlantic 
Shores' 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 
preliminarily determined that the take by harassment anticipated and 
proposed to be authorized would 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 
proposed for authorization for this species.
    The proposed rule would allow for the authorization of up to 24 
takes, by Level A harassment and Level B harassment, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment, would be 1 and 8, respectively (combined, this 
annual take (n=9) equates to approximately 0.14 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 of Specified Activities section, most of the sei whale 
distribution is concentrated in 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 24 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of 1 and 8, respectively), and in consideration of the 
proposed mitigation measures and other information presented, Atlantic 
Shores' 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.

[[Page 65505]]

For these reasons, we have preliminarily determined that the take by 
harassment anticipated and proposed to be authorized would 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 proposed for authorization 
incidental to Atlantic Shores' specified activities are by pile driving 
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 HRG surveys. While we 
expect animals to avoid the area during foundation installation, their 
habitat range is extensive compared to the area ensonified during these 
activities.
    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 proposed 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. 
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 dolphfins, 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 
discountable 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 proposed 
to be authorized for this species.
    The proposed rule would allow for the authorization of up to 13 
takes, by Level B harassment only, over the 5-year period. The maximum 
annual allowable take would be 5, which equates to approximately 0.11 
percent of the stock abundance, if each take were considered to be of a 
different individual, and with far 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 would 
remain in the Project Area for multiple days, and therefore, the 
estimated takes likely represent exposures of different individuals on 
1 day each, annually.
    If sperm whales are present in the Project Area during any project 
activities, they would 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 13 takes, by Level B harassment only, over the 
course of the 5-year rule, and a maximum annual allowable take of 5), 
and in consideration of the proposed mitigation and other information 
presented, Atlantic Shores' 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 preliminarily determined that the take by harassment anticipated 
and proposed to be authorized would have a negligible impact on the 
North Atlantic stock of sperm whales.

[[Page 65506]]

Dolphins and Small Whales (Including Delphinids)

    The six species and seven stocks included in this group (which are 
indicated in Table 4 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 proposed for authorization for 
these species.
    The six delphinid species with take proposed for the project 
consist of: 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 proposed rule would 
allow for the authorization of up to between 46 and 7,951 takes 
(depending on species), by Level A harassment and Level B harassment, 
over the 5-year period. The maximum annual allowable take for these 
species by Level A harassment and Level B harassment, would range from 
0 to 1 and 14 to 3,634, respectively (this annual take equates to 
approximately 0.05 to 29.36 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 both stocks of bottlenose dolphins, given the higher number of 
takes relative to the stock abundance, primarily due to nearshore 
landfall activities (i.e., temporary cofferdam installation and 
removal), 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 dolphins, Atlantic white-sided dolphins, common 
dolphins, long- and short-finned pilot whales, and Risso's dolphins, 
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, 
only affect a small portion of the individual's hearing range, 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 proposed mitigation and other information 
presented, Atlantic Shores' 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 preliminarily determined that the take by harassment anticipated 
and proposed for authorization would 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 proposed for authorization for this 
stock.
    The proposed rule would allow for the authorization of up to 335 
takes, by Level A harassment and Level B harassment, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment, would be 13 and 173, respectively (combined, this 
annual take (n=186) equates to approximately 0.19 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. Given that foundation 
installation is scheduled to occur off the coast of New Jersey and, 
given alternative foraging areas nearby, any avoidance of the area by 
individuals is not likely to impact the reproduction or survival of any 
individuals.
    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 
affect a relatively small portion of the individual's hearing range. 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

[[Page 65507]]

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 proposed mitigation and other information 
presented, Atlantic Shores' 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 preliminarily determined that the take by harassment anticipated 
and proposed for authorization would 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 of Specified 
Activities 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 proposed for authorization for this species.
    For the two seal species, the proposed rule would allow for the 
total authorization of up to 675 (gray seal) and 1,526 (harbor seal) 
takes for each species, by Level A harassment and Level B harassment, 
over the 5-year period. The maximum annual allowable take for these 
species, by Level A harassment and Level B harassment, would range from 
2 to 8 and 299 to 684, respectively (combined, this annual take (n=301 
to 692) equates to approximately 1.10 to 1.13 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 locations at the Atlantic landfall 
site and the Monmouth landfall site (i.e., in Sandy Hook, Barnegat Bay, 
and Great Bay). However, based on the distances between the cofferdam 
locations and the known haul-out sites, neither Atlantic Shores, nor 
NMFS, expects that in-air sounds produced would cause the take of 
hauled out pinnipeds. As all documented pinniped haul-outs are located 
far from each of the cofferdam locations, NMFS does not expect any 
harassment to occur, nor have we proposed to authorize any take from 
in-air impacts on hauled out seals.
    As described in the Potential Effects of Specified Activities on 
Marine Mammals and Their Habitat section, construction of wind farms in 
Europe resulted in pinnipeds temporarily avoiding construction areas 
but returning within short time frames after construction was complete 
(Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 2015; Russell 
et al., 2016; Brasseur et al., 2010). Effects on pinnipeds that are 
taken by Level B harassment in the Project Area would likely be limited 
to reactions such as increased swimming speeds, increased surfacing 
time, or decreased foraging (if such activity were occurring). Most 
likely, individuals would simply move away from the sound source and be 
temporarily displaced from those areas (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 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 proposed mitigation and other information 
presented, Atlantic Shores' 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 preliminarily determined that the take by harassment anticipated 
and proposed for authorization would have a negligible impact on harbor 
and gray seals.

Preliminary Negligible Impact Determination

    No mortality or serious injury is anticipated to occur or proposed 
to be authorized. As described in the preliminary analysis above, the 
impacts resulting from the project's activities cannot be reasonably 
expected to, and are not reasonably likely to, adversely affect any of 
the species or stocks for which take is proposed for authorization 
through effects on annual rates of recruitment or survival. Based on 
the

[[Page 65508]]

analysis contained herein of the likely effects of the specified 
activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed mitigation and 
monitoring measures, NMFS preliminarily finds that the marine mammal 
take from all of Atlantic Shores' 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 proposes to authorize incidental take (by Level A harassment 
and/or Level B harassment) of 16 species of marine mammal (with 17 
managed stocks). The maximum number of instances of takes by combined 
Level A harassment and Level B harassment possible within any 1 year 
and proposed for authorization relative to the best available 
population abundance is less than one-third for all species and stocks 
potentially impacted.
    For 15 of these species (15 stocks), less than 3 percent of the 
annual stock abundance is proposed to be authorized for take by Level A 
and/or Level B harassment and for 2 stock (both bottlenose dolphin), 
less than 6 percent is proposed for one stock (offshore) and less than 
23 percent is proposed for the other (coastal). Specific to the North 
Atlantic right whale, the maximum amount of take, which is by Level B 
harassment only, is 21, or 6.2 percent of the stock abundance, assuming 
that each instance of take represents a different individual. Please 
see Table 26 for information relating to this small numbers analysis.
    As noted in the final rule for the Taking and Importing Marine 
Mammals; Taking Marine Mammals Incidental to Geophysical Surveys 
Related to Oil and Gas Activities in the Gulf of Mexico (86 FR 5322, 
January 19, 2023), NMFS has determined that the small numbers finding 
should be applied to the annual take authorized per individual LOA, 
rather than to the total annual taking for all activities potentially 
occurring under the incidental take regulations. As described 
previously, Atlantic Shores has asked for two separate LOAs through 
which to authorize the requested take. The take authorized through each 
LOA would be less than that analyzed in the rule and would, together, 
not exceed the take analyzed. While NMFS still attaches the ultimate 
small numbers conclusion to the individual LOAs as described in the 
above-referenced Gulf of Mexico rule, where the entirety of the take 
allowable under regulations would be considered small numbers, as is 
the case here, then it follows that any smaller subset of that take 
authorized through subordinate LOAs will also qualify as small numbers. 
NMFS may, therefore, elect to present the supporting information for 
the entire amount of take for purposes of the small numbers analysis, 
rather than distinguishing the take that will be included in each LOA.
    Based on the analysis contained herein of the proposed activities 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

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 is proposing to authorize 
the take of four marine mammal species which are listed under the ESA: 
North Atlantic right, fin, sei, and sperm whales. The Permit and 
Conservation Division requested initiation of section 7 consultation on 
July 19, 2023, with GARFO for the promulgation of the rulemaking. NMFS 
will conclude the Endangered Species Act consultation prior to reaching 
a determination regarding the proposed issuance of the authorization. 
The proposed regulations and any subsequent LOA(s) would be conditioned 
such that, in addition to measures included in those documents, 
Atlantic Shores would also be required to abide by the reasonable and 
prudent measures and terms and conditions of the Biological Opinion and 
Incidental Take Statement, as issued by NMFS, pursuant to section 7 of 
the Endangered Species Act.

Executive Order 12866

    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866, 
as amended by Executive Order 14094.

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 
has certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Atlantic Shores is the sole entity that would be subject to the 
requirements in these proposed regulations, and Atlantic Shores is not 
a small governmental jurisdiction, small organization, or small 
business, as defined by the RFA. Under the RFA, governmental 
jurisdictions are considered to be small if they are governments of 
cities, counties, towns, townships, villages, school districts, or 
special districts, with a population of less than 50,000. Because of 
this certification, a regulatory flexibility analysis is not required 
and none has been prepared.

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

[[Page 65509]]

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. Submit any comments regarding any aspect of this data 
collection, including suggestions for reducing the burden, to NMFS (see 
ADDRESSES section) and through the Regulatory Dashboard at 
www.reginfo.gov.

Coastal Zone Management Act (CZMA)

    The Coastal Zone Management Act (CZMA) requires Federal actions 
within and outside the coastal zone that have reasonably foreseeable 
effects on any coastal use or natural resource of the coastal zone be 
consistent with the enforceable policies of a state's federally-
approved coastal management program (16 U.S.C. 1456(c)). NMFS has 
determined that Atlantic Shores' application for incidental take 
regulations is not an activity listed by the New Jersey Coastal 
Management Program pursuant to 15 CFR 930.53 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. Consistent with 
15 CFR 930.54, NMFS published Notice of Receipt of Atlantic Shores' 
application for this incidental take regulation in the Federal Register 
on September 29, 2022 (87 FR 59061) and a 15-day extension on October 
28, 2022 (87 FR 65193) and is now publishing the proposed rule. The 
state of New Jersey did not request approval from the Director of 
NOAA's Office for Coastal Management to review Atlantic Shores' 
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.

Proposed Promulgation

    As a result of these preliminary determinations, NMFS proposes to 
promulgate a LOA to Atlantic Shores authorizing take, by Level A 
harassment and Level B harassment, incidental to construction 
activities associated with Atlantic Shores South offshore of New Jersey 
for a 5-year period from January 1, 2025, through December 31, 2029, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

Request for Additional Information and Public Comments

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

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 7, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, NMFS proposes to amend 50 
CFR part 217 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 EE, consisting of Sec. Sec.  217.300 through 217.309, to 
read as follows:
Subpart EE--Taking Marine Mammals Incidental to the Atlantic Shores 
South Project Offshore of New Jersey
Sec.
217.300 Specified activity and specified geographical region.
217.301 Effective dates.
217.302 Permissible methods of taking.
217.303 Prohibitions.
217.304 Mitigation requirements.
217.305 Monitoring and reporting requirements
217.306 Letter of Authorization.
217.307 Modifications of Letter of Authorization.
217.308-217.309 [Reserved]

Subpart EE--Taking Marine Mammals Incidental to the Atlantic Shores 
South Project Offshore of New Jersey


Sec.  217.300  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply to activities associated with 
the Atlantic Shores South project (hereafter referred to as the 
``Project'') by Atlantic Shores Offshore Wind, LLC (hereafter referred 
to as ``LOA Holder''), and those persons it authorizes or funds to 
conduct activities on its behalf in the specified geographical region 
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 0499 
Commercial Lease of Submerged Lands for Renewable Energy Development, 
along the relevant Export Cable Corridors (ECCs), and at the two sea-
to-shore transition points located at the Atlantic City and the 
Monmouth landfall locations.
    (c) The specified activities are impact pile driving of wind 
turbine generators (WTGs), offshore substations (OSSs), and a 
meteorological tower (Met Tower); vibratory pile driving (install and 
subsequently remove) of cofferdams; high-resolution geophysical (HRG) 
site characterization surveys; 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 ECCs from OSSs to shore-based 
converter stations and inter-array cables between turbines.


Sec.  217.301  Effective dates.

    The regulations in this subpart are effective from January 1, 2025, 
through December 31, 2029.


Sec.  217.302  Permissible methods of taking.

    Under the LOAs, issued pursuant to Sec. Sec.  216.106 and 217.306, 
the 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 0499 
Commercial Lease of Submerged Lands for Renewable Energy

[[Page 65510]]

Development, along export cables routes, and at the two sea-to-shore 
transition points located in New Jersey at Atlantic City and Monmouth 
in the following ways, provided the LOA Holder is in complete 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOAs:
    (a) By Level B harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving (WTG, OSS, and Met Tower 
foundation installation), vibratory pile driving (cofferdam 
installation and removal), and HRG site characterization surveys; and
    (b) By Level A harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving of WTG, OSS, and Met Tower 
foundations.
    (c) Take by mortality or serious injury of any marine mammal 
species is not authorized.
    (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.
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.  217.303  Prohibitions.

    Except for the takings described in Sec.  217.302 and authorized by 
the LOAs issued under Sec.  217.306 or Sec.  217.307, 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 the LOAs issued under Sec. Sec.  
217.306 and 217.307;
    (b) Take any marine mammal not specified in Sec.  217.302(d);
    (c) Take any marine mammal specified in the LOAs in any manner 
other than as specified in the LOAs; or
    (d) Take any marine mammal specified in Sec.  217.302(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.  217.304  Mitigation requirements.

    When conducting the activities identified in Sec. Sec.  217.300(c) 
within the specified geographical area described in Sec.  217.300(b), 
LOA Holder must implement the mitigation measures contained in this 
section and any LOAs issued under Sec. Sec.  217.306 and 217.307. 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 LOAs 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 LOAs;
    (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.
    (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 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;

[[Page 65511]]

    (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 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 odontocetes 
(excluding sperm whales) and pinnipeds, and 30 minutes for all other 
species with no further sightings;
    (9) For in-water construction heavy machinery activities listed in 
Sec.  217.300(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 LOAs, 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 LOAs 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, 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 Sec.  217.305 (a)(1).
    (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 LOA Holder's Project-wide 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) 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 (see (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 ft (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

[[Page 65512]]

further visual or acoustic detection in the transit corridor in the 
past 24 hours;
    (9) LOA Holder's vessels must maintain a minimum separation 
distance of 500 m from North Atlantic right whales. If underway, all 
vessels must steer a course away from any sighted North Atlantic right 
whale at 10 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);
    (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 180 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, OSS, Met Tower foundation installation. The following 
requirements apply to impact pile driving activities associated with 
the installation of WTG, OSS, and Met Tower 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 15 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 4,400 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 four pin piles may be installed per day;
    (3) LOA Holder must not initiate pile driving earlier than 1 hour 
prior to civil sunrise or later than 1.5 hours prior to civil sunset, 
unless the LOA Holder submits, and NMFS approves, an Alternative 
Monitoring Plan as part of the Pile Driving and Marine Mammal 
Monitoring Plan that reliably demonstrates the efficacy of their night 
vision devices;
    (4) 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;
    (5) 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;
    (6) 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 odontocetes (excluding sperm whales) and 
pinnipeds, and 30 minutes for all other species;
    (7) 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;
    (8) LOA Holder must deploy at least two fully functional, 
uncompromised 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 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

[[Page 65513]]

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)(8) must occur prior to impact pile 
driving of monopiles and pin piles. 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)(8).
    (9) LOA Holder must utilize NMFS-approved PAM systems, as described 
in paragraph (c)(16) 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).
    (10) LOA Holder must utilize PSO(s) and PAM operator(s), as 
described in Sec.  217.305(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.
    (11) 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 shut down 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).
    (12) Any visual observation at any distance or acoustic detection 
within the PAM monitoring zone of a North Atlantic right whale triggers 
shutdown requirements under paragraph (c)(11) of this subsection. 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;
    (13) 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 shutdown zones and has been visually or acoustically 
confirmed beyond that shutdown 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 odontocetes 
(excluding sperm whales) 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;
    (14) 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 and/
or the first three full jacket foundations (inclusive of all pin piles 
for a specific jacket foundation). SFV measurements must continue until 
at least three consecutive monopiles and three entire jacket 
foundations 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). 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, 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 (e.g., 
hydrophones, recording devices, hydrophone calibrators, cables, 
batteries), which exceeds the amount of equipment necessary to perform 
the measurements, such that technical issues can be mitigated before 
measurement;

[[Page 65514]]

    (vi) LOA Holder must submit 48-hour interim reports after each 
foundation is measured (see Sec.  217.305(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 operate fully functional sound 
attenuation systems (e.g., ensure hose maintenance, pressure testing) 
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 (c)(15)(vii), 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 (for 
either/or monopile and jackets) 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 Sec.  217.304(c)(14), 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/entire jacket 
foundation (inclusive of all pin piles for a jacket foundation) 
installation sites selected for SFV measurements are representative of 
the rest of the monopile and/or jacket foundation 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 as described in NOAA and BOEM 
Minimum Recommendations for Use of Passive Acoustic Listening Systems 
in Offshore Wind Energy Development Monitoring and Mitigation Programs 
(2021). 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 installation and removal. The following requirements 
apply to the installation and removal of cofferdams at the cable 
landfall construction sites:
    (1) Installation and removal of cofferdams 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 must 
only occur for up to 8 hours per day (within a single 24-hour period);
    (3) LOA Holder must establish and implement clearance zones for the 
installation and removal of cofferdams using visual monitoring. These 
zones must be measured using the radial distance from the cofferdam 
being installed and/or removed;
    (4) LOA Holder must utilize PSO(s), as described in Sec.  
217.305(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.  217.305(h)).

[[Page 65515]]

    (e) 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 Sec.  
217.305(f) of this section;
    (2) LOA Holder must utilize PSO(s), as described in Sec.  
217.305(e);
    (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) 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;
    (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 (e)(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 of acoustic sources 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 
odontocetes (excluding sperm whales) 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 are 
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. 
In cases when the shutdown zones become obscured for brief periods due 
to inclement weather, survey operations are 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 (e)(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 odontocetes (excluding 
sperm whales) 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 (e)(13) 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 observation and no additional detections of any marine mammal 
occurred within the respective shutdown zones.
    (f) 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

[[Page 65516]]

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) 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;
    (11) 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;
    (12) 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 Atlantic Large Whale Take 
Reduction Plan regulations at 50 CFR 229.32, and all buoy markings must 
comply with instructions received by the NOAA Greater Atlantic Regional 
Fisheries Office Protected Resources Division;
    (13) All survey gear must be removed from the water whenever not in 
active survey use (i.e., no wet storage); and
    (14) All reasonable efforts that do not compromise human safety 
must be undertaken to recover gear.


Sec.  217.305  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 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 Sec.  217.305(b)(6) and Sec.  217.305(b)(7));
    (5) All PSOs and PAM operators must successfully complete a 
relevant 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 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, 
and HRG surveys)

[[Page 65517]]

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, or 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, 
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, 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, 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 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) 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 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, at least two PSOs on 
the pile driving-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.  217.304(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-

[[Page 65518]]

hour shifts, a minimum 1-hour break between watches must be allowed.
    (c) PSO and PAM operator requirements during WTG, OSS, and Met 
Tower foundation installation. The following measures apply to PSOs and 
PAM operators during WTG, OSS, and Met Tower foundation installation 
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 activities. If PSOs cannot visually 
monitor the minimum visibility zone prior to impact pile driving at all 
times using the equipment described in paragraphs (b)(6) and (7) of 
this section, pile-driving operations 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 and at least 
three on-duty PSOs must be stationed on each dedicated PSO vessel. 
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 in accordance with a NMFS-approved PAM Plan;
    (3) LOA Holder must conduct PAM for at least 24 hours immediately 
prior to pile driving activities. The PAM operator must review all 
detections from the previous 24-hour period immediately prior to pile 
driving activities.
    (d) PSO requirements during cofferdam installation and removal. The 
following measures apply to PSOs during cofferdam 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
    (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 for 30 minutes after all vibratory pile driving activities 
have ceased. Sheet pile 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 LOAs. 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 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

[[Page 65519]]

applicable information, as required in any LOAs issued under Sec.  
217.306.
    (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 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); 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 LOAs. 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 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 as soon as they are available and prior 
to a subsequent foundation installation, but no later than 48 hours 
after each completed foundation installation event. 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; 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 marine mammal Level A 
harassment and Level B harassment 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 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 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

[[Page 65520]]

documented in the Construction and Operation Plan (COP), at the 
recording and foundation installation 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 hydrophone equipment and methods (i.e., recording device, 
bandwidth/sampling rate; distance from the pile 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; a description of the noise abatement system and operational 
parameters (e.g., bubble flow rate, distance deployed from the pile, 
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, 
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 after the conclusion of activities requiring PAM for mitigation. 
Reporting must use the webform templates on the NMFS Passive Acoustic 
Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. The full acoustic 
recordings from all real-time hydrophones must also be sent to the 
National Centers for Environmental Information (NCEI) for archiving 
within 90 calendar days after pile driving has ended and instruments 
have been pulled from the water.
    (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 Atlantic Regional Fisheries (GARFO; [email protected]) and 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) 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.
    (v) In the event of a vessel strike of a marine mammal by any 
vessel associated with the Project or if other 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

[[Page 65521]]

([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 LOAs. 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 NOAA 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.  217.306  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
LOA Holder must apply for and obtain the LOAs.
    (b) The LOAs, unless suspended or revoked, may be effective for a 
period of time not to exceed December 31, 2029, the expiration date of 
this subpart.
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by the LOAs, LOA Holder 
must apply for and obtain a modification of the LOAs as described in 
Sec.  217.307.
    (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 LOAs must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under the regulations of this subpart.
    (f) Notice of issuance or denial of the LOAs must be published in 
the Federal Register within 30 days of a determination.


Sec.  217.307  Modifications of Letter of Authorization.

    (a) The LOAs issued under Sec. Sec.  217.302 and 217.306 or this 
section for the activity identified in Sec.  217.300(a) shall be 
modified upon request by LOA Holder, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for this subpart (excluding changes made 
pursuant to the adaptive management provision in paragraph (c)(1) of 
this section); and
    (2) NMFS Office of Protected Resources determines that the 
mitigation, monitoring, and reporting measures required by the previous 
LOAs 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 LO(s 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 LOAs in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOAs.
    (c) The LOAs issued under Sec. Sec.  217.302 and 217.306 or this 
section for the activities identified in Sec.  217.300(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 
the 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 the LOAs 
include, but are not limited to:
    (A) Results from LOA Holder's monitoring;
    (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 LOAs.
    (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 LOAs 
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 LOAs issued 
pursuant to Sec. Sec.  217.302 and 217.306 or this section, the LOAs 
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.  217.308-217.309  [Reserved]

[FR Doc. 2023-19733 Filed 9-18-23; 8:45 am]
BILLING CODE 3510-22-P