Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind Commercial Project Offshore of Virginia, 4370-4471 [2024-00297]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 15 (Tuesday, January 23, 2024)]
[Rules and Regulations]
[Pages 4370-4471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00297]



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Vol. 89

Tuesday,

No. 15

January 23, 2024

Part II





 Department of Commerce





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 National Oceanic and Atmospheric Administration





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 50 Part 217





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Coastal Virginia Offshore Wind 
Commercial Project Offshore of Virginia; Final Rule

Federal Register / Vol. 89 , No. 15 / Tuesday, January 23, 2024 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240104-0001]
RIN 0648-BL74


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Coastal Virginia Offshore Wind 
Commercial Project Offshore of Virginia

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

ACTION: Final rule.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates 
regulations to govern the incidental taking of marine mammals 
incidental to the Virginia Electric and Power Company, doing business 
as Dominion Energy Virginia (Dominion Energy), construction of the 
Coastal Virginia Offshore Wind Commercial (CVOW-C) Project (hereafter, 
the CVOW-C Project or the Project) in Federal and State waters offshore 
of Virginia, specifically within the Bureau of Ocean Energy Management 
(BOEM) Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0483 
(Lease Area) and along export cable routes to sea-to-shore transition 
points (collectively referred to as the ``Project Area''), over the 
course of 5 years (February 5, 2024 through February 4, 2029). These 
regulations, which allow for the issuance of a Letter of Authorization 
(LOA) for the incidental take of marine mammals during construction-
related activities within the Project Area during the effective dates 
of the regulations, prescribe the permissible methods of taking and 
other means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, as well as requirements 
pertaining to the monitoring and reporting of such taking.

DATES: This rulemaking is effective from February 5, 2024, through 
February 4, 2029.

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

SUPPLEMENTARY INFORMATION:

Availability

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

Purpose and Need for Regulatory Action

    This final rule, as promulgated, provides a framework under the 
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize 
the take of marine mammals incidental to construction of the Project 
within the Project Area. NMFS received a request from Dominion Energy 
to incidentally take 21 species of marine mammals, comprising 22 stocks 
(7 stocks by Level A harassment and Level B harassment and 15 stocks by 
Level B harassment only), incidental to Dominion Energy's 5 years of 
construction activities. No mortality or serious injury is anticipated 
or authorized in this final rulemaking. Please see the Legal Authority 
for the Final Action section below for definitions of harassment, 
serious injury, and incidental take.

Legal Authority for the Final Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated (when applicable), and public notice and an opportunity for 
public comment are provided.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). If such findings are made, NMFS must prescribe the 
permissible methods of taking (e.g., ``other means of effecting the 
least practicable adverse impact'' on the affected species or stocks 
and their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
the species or stocks for taking for certain subsistence uses (referred 
to as ``mitigation'')) and requirements pertaining to the monitoring 
and reporting of such takings.
    As noted above, no serious injury or mortality is anticipated or 
authorized in this final rule. Relevant definitions of MMPA statutory 
and regulatory terms are included below:
     U.S. Citizens--individual U.S. citizens or any corporation 
or similar entity if it is organized under the laws of the United 
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 
216.103);
     Take--to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13); 
50 CFR 216.3);
     Incidental harassment, incidental taking, and incidental, 
but not intentional, taking--an accidental taking. This does not mean 
that the taking is unexpected, but rather it includes those takings 
that are infrequent, unavoidable, or accidental (see 50 CFR 216.103);
     Serious Injury--any injury that will likely result in 
mortality (50 CFR 216.3);
     Level A harassment--any act of pursuit, torment, or 
annoyance which has the potential to injure a marine mammal or marine 
mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and
     Level B harassment--any act of pursuit, torment, or 
annoyance which has the potential to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3).
    Section 101(a)(5)(A) of the MMPA and the implementing regulations 
at 50 CFR part 216, subpart I provide the legal basis for proposing 
and, if appropriate, issuing regulations and an associated LOA(s). This 
final rule establishes permissible methods of taking and mitigation, 
monitoring, and reporting requirements for Dominion Energy's 
construction activities.

Summary of Major Provisions Within the Final Rule

    The major provisions of this final rule are:
     The authorized take of marine mammals by Level A 
harassment and/or Level B harassment;
     No authorized take of marine mammals by mortality or 
serious injury;

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     The establishment of a seasonal moratorium on pile driving 
of foundation piles during the months of the highest presence of North 
Atlantic right whales (Eubalaena glacialis) in the Lease Area (November 
1st through April 30th, annually);
     A requirement for both visual and passive acoustic 
monitoring to occur by NOAA Fisheries-approved Protected Species 
Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators (where 
required) before, during, and after select activities;
     A requirement of training for all Dominion Energy 
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 devices during all 
foundation 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 the PAM Monitoring Zone (10 kilometer 
(km));
     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 pile driving (if feasible) if a 
North Atlantic right whale is observed at any distance or if any other 
marine mammals are observed entering their respective shutdown zones;
     A requirement to conduct sound field verification (SFV) 
during foundation pile driving 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 to monitor relevant Right Whale Sightings 
Advisory System 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 to submit frequently scheduled and 
situational reports 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 issued under these 
regulations, after notice and opportunity for public comment, if it 
finds the methods of taking or the mitigation, monitoring, or reporting 
measures are not being substantially complied with (16 U.S.C. 
1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with 
the requirements of the LOA may result in civil monetary penalties and 
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 
CFR 216.206(g)).

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

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

Summary of Request

    On February 16, 2022, Dominion Energy submitted a request for the 
promulgation of regulations and issuance of an associated LOA to take 
marine mammals incidental to construction activities associated with 
the Project. The request was for the incidental, but not intentional, 
taking of a small number of 21 marine mammal species (comprising 22 
stocks) by Level B harassment (all 22 stocks) and by Level A harassment 
(7 species or stocks). Dominion Energy did not request, and NMFS 
neither expects nor authorizes, incidental take by serious injury or 
mortality.
    In response to our questions and comments and following extensive 
information exchange between Dominion Energy and NMFS, Dominion Energy 
submitted a final revised application on August 5, 2022. NMFS deemed it 
adequate and complete on August 12, 2022. This final application is 
available on NMFS' website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    On September 15, 2022, NMFS published a notice of receipt (NOR) of 
Dominion Energy's adequate and complete application in the Federal 
Register (87 FR 56634), requesting public comments and information on 
Dominion Energy's request during a 30-day public comment period. During 
the NOR public comment period, NMFS received a single comment letter 
from an environmental non-governmental organization: the Southern 
Environmental Law Center (SELC). We also received a single comment from 
a government agency: the United States Geological Survey. These 
comments entailed broader comments very similar to those we received 
during the proposed notice's comment period, including, but not limited 
to: vessel strike avoidance measures; the use of best available science 
when evaluating a seasonal pile driving moratorium; suggestions on 
proposed clearance and shutdown (termed ``exclusion'') zones for North 
Atlantic right whales; cumulative impacts; and additional suggested 
mitigation, monitoring, and reporting measures in a supplemental 
attachment provided by the commenter. In June 2022, Duke University's 
Marine Spatial Ecology Laboratory released updated habitat-based marine 
mammal density models (Roberts et al., 2023). Because Dominion Energy 
applied marine mammal densities to their analysis in their application, 
Dominion Energy submitted a final Updated Density and Take Estimation 
Memo (herein referred to as Updated Density and Take Estimation Memo) 
on January 10, 2023 that included marine mammal densities and take 
estimates based on these new models which NMFS posted on our website in 
May 2023.
    In January 2023, BOEM informed NMFS that the proposed activity had 
changed from what is presented in the adequate and complete MMPA 
application. Specifically, the changed proposed activity involved the 
reduction of maximum wind turbine generators (WTGs) built (from 205 to 
202 WTGs) as under the original Project Design Envelope (PDE) and the 
offshore substations (OSSs) would be located in the vessel transit 
routes. Under the 202

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build-out, three WTGs would be removed and the three OSSs would be 
shifted into these WTG positions. However, in late January 2023, 
Dominion Energy confirmed that their Preferred Layout of 176 WTGs is 
the base case for construction, but that they could possibly need up to 
7 WTGs re-piled in alternate positions due to unstable sediment 
conditions, which could necessitate up to 183 independent piling 
events. WTG positions have been removed from consideration for one or 
more of the following reasons: impracticable due to foundation 
technical design risk, shallow gas presence, commercial shipping and 
navigation risk concerns, erosion risk, and presence of a designated 
fish haven. Based on the information provided, NMFS carried forward the 
analysis assuming a total build-out of 176 WTGs plus seven re-piled 
WTGs (a total of 183 independent piling events for WTGs) and the 3 
originally planned OSSs. Due to the significant reduction of turbines 
from the original proposed action found in the adequate and complete 
ITA application (reduction of approximately 14 percent), Dominion 
Energy, in consultation with NMFS, provided an updated proposed action 
summary, revised exposure estimates, revised take requests, and an 
updated piling schedule in mid-February 2023 (hereinafter referred to 
as the Revised Proposed Action Memo). NMFS posted this to our website 
in May 2023.
    On May 4, 2023, NMFS published a proposed rule in the Federal 
Register for the CVOW-C Project (88 FR 28656). In the proposed rule, 
NMFS synthesized all of the information provided by Dominion Energy, 
all best available scientific information and literature relevant to 
the proposed project, outlined, in detail, proposed mitigation designed 
to effect the least practicable adverse impacts on marine mammal 
species and stocks as well as proposed monitoring and reporting 
measures, and made preliminary negligible impact and small numbers 
determinations. The public comment period on the proposed rule was open 
for 30 days on https://www.regulations.gov starting on May 4, 2023 and 
closed after June 5, 2023. The public comments can be viewed at https://www.regulations.gov/docket/NOAA-NMFS-2023-0030; a summary of public 
comments received during this 30-day period and NMFS responses are 
described in the Comments and Responses section.
    NMFS has previously issued six Incidental Harassment Authorizations 
(IHAs) to Dominion Energy. Two of those IHAs, issued in 2018 (83 FR 
39062, August 8, 2018) and 2020 (85 FR 30930, May 21, 2020) supported 
the development of the Coastal Virginia Offshore Wind project, known as 
the CVOW Pilot Project (wherein two turbines were constructed). The 
remaining four IHAs (two of which were modified IHAs) were high 
resolution site characterization surveys within and around the CVOW-C 
Lease Area (see 85 FR 55415, September 8, 2020; 85 FR 81879, December 
17, 2020; 86 FR 21298, April 22, 2021; and 87 FR 33730, June 3, 2022). 
To date, Dominion Energy has complied with all the requirements (e.g., 
mitigation, monitoring, and reporting) of the previous IHAs and 
information regarding their monitoring results may be found in the 
Estimated Take section. These monitoring reports can be found on NMFS' 
website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations (87 FR 46921, 
August 1, 2022) to further reduce the likelihood of mortalities and 
serious injuries to endangered right whales from vessel collisions, 
which are a leading cause of the species' decline and a primary factor 
in an ongoing Unusual Mortality Event (UME). Should a final vessel 
speed rule be issued and become effective during the effective period 
of these regulations (or any other MMPA incidental take authorization), 
the authorization holder will be required to comply with any and all 
applicable requirements contained within the final 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 will be required to comply with 
the requirements of the vessel speed rule. Alternatively, where 
measures in this or any other MMPA authorization are more restrictive 
or protective than those in any final vessel speed rule, the measures 
in the MMPA authorization will remain in place. The responsibility to 
comply with the applicable requirements of any vessel speed rule will 
become effective immediately upon the effective date of any final 
vessel speed rule, and when notice is published on the effective date, 
NMFS will also notify Dominion Energy if the measures in the vessel 
speed rule were to supersede any of the measures in the MMPA 
authorization.

Description of the Specified Activities

Overview

    Dominion Energy plans to construct and operate the Project, a 2,500 
to 3,000-megawatt (MW) offshore wind farm, in the Project Area. The 
Project will allow the Commonwealth of Virginia to meet its renewable 
energy goals under the Virginia Clean Economy Act (HB 1526/SB 851).
    Dominion Energy's precursor pilot project (i.e., CVOW Pilot 
Project) was a 12 MW, two-turbine test project and the first to be 
installed in Federal waters. Designed as a research/test project, the 
two turbines associated with the CVOW Pilot Project became operational 
in October 2020 approximately 27 miles (mi; 43.45 kilometers (km)) off 
of Virginia Beach, Virginia. Information on this Pilot Project was used 
to inform the CVOW-C project. More information on the Pilot Project can 
be found on BOEM's website (https://www.boem.gov/renewable-energy/state-activities/coastal-virginia-offshore-wind-project-cvow) and in 
the IHA authorized by NMFS in May 2020 for BOEM Lease Area OCS-A-0497 
(https://www.bfisheries.bnoaa.bgov/action/incidental-take-authorization-dominion-energy-virginia-offshore-wind-construction-activities).
    The Project will consist of several different types of permanent 
offshore infrastructure, including 176 WTGs (e.g., the Siemens Gamesa 
SG-14-222 DD 14-MW model with power boost technology potentially 
allowing up to 14.7-MW, equating to a total of 2,587.2-MW for full 
build-out) and associated foundations, three OSSs, offshore substation 
array cables, offshore export cables, and substation interconnector 
cables. Overall, Dominion Energy will conduct the following specified 
activities: install 176 WTGs and 3 OSS on monopile foundations via 
vibratory and impact pile driving; install and subsequently remove up 
to 9 cofferdams, by vibratory pile driving, and install up to 108 goal 
posts (12 goal posts for each of 9 Direct Pipe locations), by impact 
pile driving, to assist in the installation of the export cable; 
conduct several types of fishery and ecological monitoring surveys; 
place scour protection; trenching, laying, and burial activities 
associated with the installation of the export cable from OSSs to 
shore-based converter stations and inter-array cables between turbines; 
conduct HRG vessel-based site characterization 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,

[[Page 4373]]

supplies, and materials to support construction activities; and WTG 
operation. 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, which will be located in a parking lot found west of the 
firing range at the State Military Reservation located in Virginia 
Beach, Virginia.
    Marine mammals exposed to elevated noise levels during vibratory 
and impact pile driving and site characterization surveys may be taken 
by Level A harassment and/or Level B harassment, depending on the 
specified activity and species.
    A detailed description of the specified activities is provided in 
the proposed rule as published in the Federal Register (88 FR 28656, 
May 4, 2023). Since the proposed rule was published, Dominion Energy 
has not modified the specified activities. Please refer to the proposed 
rule for more information on the description of the specified 
activities.

Dates and Duration

    Dominion Energy anticipates its specified activities to occur 
throughout all 5 years of the effective period of the regulations, 
beginning on February 5, 2024 and continuing through February 4, 2029. 
Dominion Energy's anticipated construction schedule can be found in 
Table 1. Dominion Energy has noted that these are the best, and 
conservative, estimates for activity durations but that the schedule 
may shift due to weather, mechanical, or other related delays.

                                        Table 1--Construction Schedule a
----------------------------------------------------------------------------------------------------------------
             Project activity                     Expected timing            Expected duration (approximate)
----------------------------------------------------------------------------------------------------------------
Scour Protection Pre-Installation........  Q2 through Q4 of 2024.......  9 months.
                                           Q2 through Q4 of 2025.......  9 months.
WTG Foundation Installation b e..........  Q2 through Q4 of 2024.......  6 months.
                                           Q2 through Q4 of 2025.......  6 months.
Scour Protection Post-installation.......  Q2 through Q4 of 2024.......  9 months.
                                           Q2 through Q4 of 2025.......  9 months.
OSS Foundation Installation b e..........  Q2 through Q4 of 2024.......  6 months.
                                           Q2 through Q4 of 2025.......  6 months.
Cable Landfall Construction (Goal Posts    Q1 through Q4 of 2024.......  6 months.
 and Cofferdams) \h\.
HRG Surveys c d..........................  Q1 2024 through Q4 2028.....  Any time of year.
Site Preparation.........................  Q1 2024 through Q2 2024.....  6 months.
Inter-array Cable Installation...........  Q2 2025 through Q4 2026.....  19 months.
Export Cable Installation................  Q3 2024 through Q3 2025.....  14 months.
Fishery Monitoring Surveys: f g
    Surf Clam............................  Q2 2023.....................  1 week.
    Whelk................................  Q2 2023 through Q1 2025.....  24 months.
    Black Sea Bass.......................  Q2 2023 through Q1 2025.....  24 months.
----------------------------------------------------------------------------------------------------------------
Note: ``Q1, Q2, Q3, and Q4'' each refer to a quarter of the year, starting in January and comprising 3 months
  each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3 represents July
  through September, and Q4 represents October through December.
\a\ While the effective period of the final regulations would extend a few months into 2029, no activities are
  planned to occur in 2029 by Dominion Energy, so these were not included in this table.
\b\ Activities would only occur from May 1st through October 31st annually.
\c\ Activities would begin in February 2024, upon the issuance of an associated LOA, and continue through
  construction and post-construction.
\d\ For HRG surveys, Dominion Energy anticipates up to 65 days of surveys would occur during the pre-
  construction period (2024), up to 307 days during the primary construction years (2025 and 2026), and up to
  736 days would be needed during the post-construction years (2027 and 2028) with a 50/50 split of 368 days
  each year. No surveys are planned for 2029.
\e\ Dominion Energy anticipates that all WTGs and OSS foundations will be installed by October 31, 2025;
  however, unanticipated delays may require some foundation pile driving to occur in 2026 and/or 2027.
\f\ Some fishery monitoring survey activities are planned prior to February 2024 but are not included here as
  they would not occur during the effective dates of the rule and an associated LOA.
\g\ Dates displayed here are for field work, as that would be the only component that could impact marine
  mammals.
\h\ Although cable landfall activities are anticipated to occur over 9-12 months total, activities capable of
  harassing marine mammals would only occur for the specified duration described here as other activities
  necessary for landfall construction (i.e., area preparation, material transportation, etc.) would also occur.

Specified Geographic Region

    A detailed description of the Specified Geographic Region is 
provided in the proposed rule as published in the Federal Register (88 
FR 28656, May 4, 2023). Since the proposed rule was published, no 
changes have been made to the Specified Geographic Region. Generally, 
Dominion Energy's specified activities (i.e., vibratory and impact pile 
driving of WTGs on monopile and OSS on jacket foundations; vibratory 
pile driving (installation and removal) of temporary cofferdams; impact 
pile driving (installation) of goal posts; placement of scour 
protection; trenching, laying, and burial activities associated with 
the installation of the export cable and inter-array cables; HRG site 
characterization surveys; and WTG operation) are concentrated in the 
Project Area (Figure 1). A couple of Dominion Energy's specified 
activities (i.e., fishery and ecological monitoring surveys and 
transport vessels) will occur in the Mid-Atlantic Bight.
BILLING CODE 3510-22-P

[[Page 4374]]

Figure 1--Project Area
[GRAPHIC] [TIFF OMITTED] TR23JA24.000

BILLING CODE 3510-22-C

Comments and Responses

    A notice of proposed rulemaking was published in the Federal 
Register on May 4, 2023 (88 FR 28656). The proposed rulemaking 
described, in detail, Dominion Energy's specified activities, the 
specified geographic region of the specified activities, the

[[Page 4375]]

marine mammal species that may be affected by those activities, and the 
anticipated effects on marine mammals. In the proposed rule, we 
requested that interested persons submit relevant information, 
suggestions, and comments on Dominion Energy's request for the 
promulgation of regulations and issuance of an associated LOA described 
therein, our estimated take analyses, the preliminary determinations, 
and the proposed regulations. The proposed rule was available for a 30-
day public comment period.
    In total, NMFS received 169 comment submissions, comprising 161 
individual comments from private citizens and 6 comment letters from 
organizations or public groups including, but not limited to: the 
Marine Mammal Commission (the Commission), Oceana, Inc. (Oceana), SELC, 
Responsible Offshore Development Alliance (RODA), West Coast Pelagic 
Conservation Group (WCPCG); and the Virginia Department of Wildlife 
Resources (VDWR). Some of the comments received are considered out-of-
scope, including, but not limited to, comments related to the non-
offshore wind farm development; concerns for other species outside of 
NMFS' jurisdiction (i.e., birds, tortoises, bats, insects); costs 
associated with offshore wind development; recycling of turbine 
components; national security concerns; other projects that are not the 
CVOW-C Project; and project decommissioning, which would occur outside 
the effective period of this rule. These comments are not described 
herein or discussed further. Moreover, where comments recommended that 
the final rule include mitigation, monitoring, or reporting measures 
that were already included in the proposed rule and such measures are 
carried forward in this final rule, they are not included here, as 
those comments did not raise significant points for NMFS to consider. 
Furthermore, if a comment received was unclear, we do not include it 
here as we could not determine whether it raised a significant point 
for NMFS to consider. NMFS also received a comment letter from Gatzke 
Dillion & Ballance LLP on behalf of the Committee for a Constructive 
Tomorrow (CFACT), the American Coalition for Ocean Protection (ACOP), 
and the Heartland Institute after the close of the public comment 
period.
    The six letters (i.e., Oceana, RODA, WCPCG, SELC, VDWR, and the 
Commission), as well as individual comments, received during the public 
comment period contained significant points that NMFS considered in its 
estimated take analysis, including: required mitigation, monitoring, 
and reporting measures; final determinations; and final regulations. 
These are described and responded to below. All substantive comments 
and letters are available on NMFS' website: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please review the corresponding public 
comment link for full details regarding the comments and letters.

Modeling and Take Estimates

    Comment 1: The Commission claimed NMFS ``underestimated the numbers 
of Level A harassment and Level B harassment takes (including failing 
to round up to group size) . . .'' Specifically, the Commission claimed 
NMFS underestimated the number of takes for harbor seals because harbor 
seals occur in much greater numbers than gray seals off Virginia (see 
Jones and Rees, 2022).
    Response: NMFS incorporated group size into the estimated take 
analysis (see the Estimated Take of Marine Mammals section in the 
proposed rule (88 FR 28656, May 4, 2023) and Estimated Take section of 
this final rule). The Commission did not provide specific 
recommendations to adjust any take estimates other than for harbor and 
gray seals. NMFS has reviewed the number of takes by Level A harassment 
and Level B harassment for all species and disagrees it is an 
underestimate.
    While the Commission does indeed cite a relevant paper, Jones and 
Rees (2022), as the basis for their observation, NMFS does not believe 
this paper alone is enough justification for adjusting take. The study 
sites in Jones and Rees (2022) are not applicable to Dominion Energy's 
activities (i.e., they are located in estuarine habitat) as NMFS does 
not expect these specific areas to be impacted by the construction work 
for CVOW-C.
    Specifically in addressing the Commission's concerns with the 50/50 
allocation of take for pinnipeds between each species, NMFS disagrees 
that this method is incorrect and that this approach over- or under-
estimates take. The Duke University density models (Roberts et al., 
2023) group some species together (including phocid seals) to provide a 
single density estimate. While we acknowledge that more harbor seals 
have been observed in inland Chesapeake Bay waters than gray seals, 
there is not sufficient at-sea data to better proportion the number of 
takes by species; therefore, we assumed a 50/50 split consistent with 
Roberts et al. (2023). Importantly, for each species, we believe the 
maximum number of takes authorized in any given year (n=84 for each 
species) is a reasonable estimate of the number of harassment takes 
that may occur incidental to the specified activities given the 
majority of work that may result in marine mammal harassment would be 
occurring during times (May 1st through October 31st) when seals are 
less likely to be present in Virginia waters. For these reasons, we 
disagree with the Commission's claim and have not modified the take 
estimate approach in this final rule.
    Comment 2: A commenter disagreed with NMFS' preliminary small 
numbers determination based on the sum of takes for all species.
    Response: Under the MMPA, the Secretary of Commerce, as delegated 
to NMFS, shall allow the incidental taking of ``small numbers of marine 
mammals of a species or population stock'' if specific findings are 
made (16 U.S.C. 1371(a)(5)(a)(i)). Thus, the small numbers finding is 
done at the species or population level. 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. NMFS has 
made the necessary small numbers finding for all affected species and 
stocks.
    Comment 3: A commenter stated that there is the potential for 
repeated exposures to adversely affect species' or stocks' annual rates 
of recruitment or survival.
    Response: NMFS fully considered the potential for repeated 
exposures in the proposed rule and this final rule when determining if 
the specified activities would result in a negligible impact to the 
affected species and stocks. The Negligible Impact Analysis and 
Determination section in both the proposed and final rules discusses 
the potential for repeated exposures and the potential related impacts. 
As described in those sections, NMFS has determined that the impacts 
resulting from the specified activities (recognizing that the potential 
for repeated exposures varies with the species due to habitat use 
(e.g., migrating whales versus species that may remain in the area over 
longer periods of time)), will have a negligible impact on the affected 
species and stocks.
    Comment 4: Commenters stated that there is no evidence or research 
proving that the CVOW-C Project would not cause the mortality or 
serious injury of marine mammals. The commenters further stated that 
there is no evidence proving that the estimated take

[[Page 4376]]

proposed by NMFS in the proposed rule is accurate or the maximum total.
    Response: Regarding take by serious injury or mortality, the 
proposed rule clearly states that no serious injury and/or mortality is 
expected or proposed for authorization, and the same carries into the 
final rule for which no take by serious injury or mortality has been 
authorized (see also 50 CFR 217.292(c)).
    Regarding the claim that there is no evidence proving the take 
estimates are accurate, the take numbers, as shown in the proposed and 
final rule, are based on the best available marine mammal density data, 
published and peer reviewed scientific literature, on-the-water reports 
from other nearby projects or past MMPA actions, and highly complex 
statistical models of which real-world assumptions and inputs have been 
incorporated to estimate on a project-by-project basis. In the 
Estimated Take section, NMFS has provided detailed rationale for why 
the number and manner of takes authorized in this final rule are 
reasonable and based on the best available science. The commenter did 
not provide any information to support their claim that take estimates 
are not representative of the take that may occur incidental to the 
project. NMFS disagrees with the commenter and expects that the take 
numbers authorized for this action are sufficient given the activity 
proposed and planned by Dominion Energy.

Mitigation

    Comment 5: The commenter stated that the LOA must include 
conditions for the survey and construction activities that will first 
avoid adverse effects on North Atlantic right whales in and around the 
area and then minimize and mitigate the effects that cannot be avoided. 
This should include a full assessment of which activities, technologies 
and strategies are truly necessary to achieve site characterization and 
construction to inform development of the offshore wind projects and 
which are not critical, asserting that NMFS should prescribe the most 
appropriate techniques that would produce the lowest impact while 
achieving the same goals while prohibiting those other tools/techniques 
that would cause more frequent, intense, or long-lasting effects.
    Response: The MMPA requires that we include measures that will 
effect the least practicable adverse impact on the affected species and 
stocks and, in practice, NMFS agrees that the rule should include 
conditions for the construction activities that will first avoid 
adverse effects on North Atlantic right whales in and around the 
project area, where practicable, and then minimize the effects that 
cannot be avoided. NMFS has determined that this final rule meets this 
requirement to effect the least practicable adverse impact. The 
commenter does not make any specific recommendations of measures to add 
to the rulemaking.
    NMFS is required to authorize the requested incidental take if it 
finds such incidental take of small numbers of marine mammals by the 
requestor while engaging in the specified activities within the 
specified geographic region will have a negligible impact on such 
species or stock and, where relevant, will not have an unmitigable 
adverse impact on the availability of such species or stock for 
subsistence uses. As described in this notice of final rulemaking, NMFS 
finds that small numbers of marine mammals may be taken relative to the 
population size of the affected species or stocks and that the 
incidental take of marine mammal from all of Dominion Energy's 
specified activities combined will have a negligible impact on all 
affected marine mammal species or stocks. It is not within NMFS' 
authority to determine if the requestor's specified activities are 
truly necessary or critical; however, NMFS does identify and has 
required in this final rule mitigation measures the effect the least 
practicable adverse impact on marine mammals.
    Comment 6: The commenter stated that the LOA should use buffer 
zones to avoid any effects of turbine presence on North Atlantic right 
whales and foraging.
    Response: Buffer zones have been suggested to mitigate impacts from 
offshore wind related activities near areas of significance (e.g., 
known feeding grounds). As described in the proposed rule and herein, 
the project area, located offshore Virginia, is not considered foraging 
habitat and while some opportunistic foraging may occur, it is 
primarily a migratory corridor. Therefore, NMFS disagrees that a new 
mitigation measure creating a buffer zone is necessary to effect the 
least practicable adverse impact on North Atlantic right whales.
    Comment 7: One commenter recommended that NMFS require clearance 
and shutdown zones for all protected species that included (1) a 
minimum of 5,000 m (3.1 mi) for the visual and acoustic clearance 
zones; and (2) an acoustic shutdown zone that would extend at least 
2,000 m (1.2 mi) in all directions from the driven pile location. 
Commenters also recommended that NMFS require pile-driving clearance 
and shutdown zones for large whales (other than North Atlantic right 
whale) that are large enough to avoid all take by Level A harassment 
and minimize Level B harassment to the most practicable extent.
    Response: The required shutdown and clearance zones (equally sized) 
for large whales (other than North Atlantic right whale) are based on 
the largest Level A harassment exposure range calculated for a 
mysticete, other than humpback whales, rounded up to the nearest 
hundred for PSO clarity. For all other species (e.g., dolphins, harbor 
porpoise, seals), clearance and shutdown zones have been developed in 
consideration of modeled distances to relevant PTS thresholds with 
respect to minimizing the potential for take by Level A harassment, 
which were rounded up for PSO clarity. NMFS has determined that these 
zone sizes effect the least practicable adverse impact on marine 
mammals. Further, delaying the project unnecessarily due to very large 
clearance and shutdown zones could have unintended adverse impacts on 
marine mammals by extending the construction schedule. The commenters 
do not provide additional scientific information to support their 
suggestion to expand clearance and shutdown zones to the distances 
recommended. NMFS has not incorporated this recommendation into this 
final rule.
    NMFS agrees that mitigation measures should be designed to avoid 
and minimize the potential for PTS and has included such measures in 
this rulemaking to effect the least practicable adverse impact on 
marine mammals. Specifically, in addition to requiring shutdown of pile 
driving if North Atlantic right whales are detected at any distance, 
NMFS has identified and required reasonable mitigation measures to 
avoid or minimize adverse impacts to marine mammals, such as setting 
this Project's impact pile driving clearance zones to be larger than 
the Level A harassment (PTS) zones for all other large whale species. 
NMFS believes that these measures are effective and would result in 
avoiding (North Atlantic right whale) or minimizing (other large 
whales) the takes by Level A harassment. We anticipate that where there 
is potential for Level A harassment, any auditory injury will be 
minimized through the implementation of noise abatement, soft starts, 
and clearance and shutdown zones. NMFS has made its required negligible 
impact finding based on the amount of take that may be authorized in 
the LOA.
    NMFS agrees with the commenter that impacts should be minimized to 
the maximum extent practicable and we have done so with the required

[[Page 4377]]

mitigation measures. Enlargement of these zones is not practicable as 
it could interrupt and delay the project such that construction 
activities would occur over longer timeframes, which would incur 
additional costs but, importantly, also potentially increase the number 
of days that marine mammals are exposed to the disturbance. Conducting 
activities as expeditiously as possible when large whales are less 
likely to occur in the area is a means by which to minimize harassment. 
Accordingly, NMFS has determined that enlargement of these zones is not 
warranted, and that the existing required clearance and shutdown zones 
support a suite of measures that will effect the least practicable 
adverse impact on other large whales.
    Comment 8: A commenter recommended that, to protect all protected 
species, NMFS should restrict pile driving at night while another 
recommended pile driving should only be allowed to continue after dark 
if the activity was started during daylight hours and must continue due 
to human safety or installation feasibility (i.e., stability) concerns, 
but that nighttime monitoring protocols be required. A commenter 
suggested that if pile driving must continue after dark, Dominion 
Energy should be required to notify NMFS with these reasons and an 
explanation for exemption and that a summary of the frequency of these 
exceptions must be made publicly available to ensure that these are 
indeed exceptions, rather than the norm, for the project.
    Response: Dominion Energy did not request, and NMFS did not 
evaluate, nighttime pile driving except in the following circumstance. 
In the proposed rule, we indicated that Dominion Energy must initiate 
pile driving prior to 1.5 hours before civil sunset and not before 1 
hour after civil sunrise unless they submit to NMFS, for approval, an 
Alternative Monitoring Plan for nighttime pile driving activities. 
Within the final regulations and consistent with the commenter's 
recommendation, Dominion Energy will be allowed, due to safety and 
stability concerns, to finish piles at night when the pile has been 
started during daylight hours, in which they still must provide an 
Alternative Monitoring Plan for NMFS review and approval to ensure that 
they can appropriately monitor and mitigate for marine mammals in 
reduced visibility conditions. This Plan will describe the alternative 
monitoring technologies that would be used to observe for marine 
mammals, which as described in the proposed rule and carried over into 
the final rule, includes technologies such as infrared or thermal 
cameras, that are considered practical in low-light conditions and 
other periods of reduced visibility to allow for the continuation of 
monitoring the applicable clearance and shutdown zones. This 
Alternative Monitoring Plan is also applicable to reduced visibility 
conditions.
    Regarding the reporting requirement specified by the commenter, 
required weekly and monthly reports during foundation installation must 
contain information that would inform how long and when pile driving 
occurred, as Dominion Energy is required to document the daily start 
and stop times of all pile-driving activities. At minimum, a final 
annual report with this information will be made available to the 
public, as recommended by the commenter.
    Comment 9: Given the potential of the project to increase the 
vessel traffic in and around the project area, a commenter suggests 
that the regulations include a vessel traffic plan to minimize the 
effects of service vessels on marine wildlife and include the following 
requirements for all project vessels, regardless of their function, 
ownership, or operator, to further reduce impacts to marine mammals: 
(1) all vessels associated with the proposed construction should be 
required to carry and use PSOs at all times when under way; and (2) 
limit all vessels, regardless of size, to speeds less than 10 knots 
(kn) at all times with no exceptions allowed. Alternatively, commenters 
suggest that project proponents could work with NMFS to develop an 
``Adaptive Plan'' that modifies vessel speed restrictions if the 
monitoring methods informing the Adaptive Plan are proven as effective 
when for vessels traveling 10 kn or less and must follow a scientific 
study design. One commenter further suggested that if the Adaptive Plan 
is scientifically proven to be equally or more effective than a 10-kn 
speed restriction, that the Adaptive Plan could be used as an 
alternative to the 10-kn speed restriction. Identical or similar vessel 
mitigation measures were suggested by others.
    Response: Dominion Energy is required to abide by a suite of vessel 
strike avoidance measures that include, for example, seasonal and 
dynamic vessel speed restrictions to 10 kn (18.5 km/hour) or less; 
required use of dedicated observers (i.e., visual PSOs during 
construction activities or trained lookouts during vessel transit) on 
all transiting vessels; and a requirement to maintain awareness of 
North Atlantic right whale presence and occurrence through monitoring 
of North Atlantic right whale sighting systems (i.e., RWSAS, U.S. Coast 
Guard Channel 16, the establishment of any Dynamic Management Areas 
(DMAs)). Additionally, as included in the proposed rule and required in 
this final rule, Dominion Energy is required to submit a North Atlantic 
Right Whale Vessel Strike Avoidance Plan to NMFS for review and 
approval (see Sec.  217.294(b)(16)). While a year-round 10-kn 
requirement could potentially fractionally reduce the already 
discountable probability of a vessel strike, this theoretical reduction 
is not expected to manifest in measurable real-world differences in 
impact. Further, additional limitations on speed have significant 
practicability impacts on applicants, in that, given the distance of 
CVOW-C's Lease Area offshore of Virginia, vessels trips to and from 
shore would significantly increase in duration to the extent that 
delays to the project and planned construction schedule would be likely 
to occur resulting in impracticable economic and resource (e.g., vessel 
availability) constraints. Additionally, requiring a PSO on all 
transiting vessels (in lieu of trained crew members) also contribute to 
unnecessary and impracticable economic and resources issues (as space 
on vessels is limited), which could also extend the number of days 
necessary to complete all pile driving of foundations. While NMFS is 
requiring a dedicated observer to be aboard all transiting vessels, we 
find a dedicated trained crew member is sufficient to observe for 
marine mammals, particularly large whales, to further reduce risk of 
vessel strike. Furthermore, Dominion Energy has committed to the use of 
PAM within the vessel transit corridor to further aid in the detection 
of marine mammals. NMFS has determined that these and other included 
measures ensure the least practicable adverse impact on species or 
stocks and their habitat. Therefore, we are not requiring project-
related vessels to travel 10 kn or less at all times.
    Regarding an ``Adaptive Plan'', the proposed rule and this final 
rule contain adaptive management provisions that allows NMFS to modify 
mitigation, monitoring, or reporting measures if doing so creates a 
reasonable likelihood of more effectively accomplishing the goal(s) of 
the measure (see Sec.  217.297(c)). Dominion Energy may also request 
modifications to the mitigation and monitoring measures (see Sec.  
217.297(a)-(b)). Therefore, NMFS disagrees that an Adaptive Plan is 
necessary to affect the least practicable adverse impact on marine 
mammals.
    Comment 10: Commenters recommended that NMFS require

[[Page 4378]]

Dominion Energy to implement the best, commercially available combined 
NAS technology to achieve the greatest level of noise reduction and 
attenuation possible for pile driving, with a specific recommendation 
that NMFS require, at a minimum, a 10-dB reduction in SEL. The 
commenter further stated that NMFS should require field measurements to 
be taken throughout the construction process, including on the first 
pile installed, to ensure compliance with noise reduction requirements.
    Response: NMFS agrees with the suggestion made by the commenters 
that underwater noise levels should be reduced to the greatest degree 
practicable to reduce impacts on marine mammals. As described in both 
the proposed and final rule, NMFS has included requirements for sound 
attenuation methods that successfully (evidenced by required sound 
field verification measurements) reduce real-world noise levels 
produced by impact pile driving of foundation installation to, at a 
minimum, the levels modeled assuming 10-dB reduction, as analyzed in 
this rulemaking. Preliminary sound measurements from South Fork Wind 
indicate that with multiple NAS systems, measured sound levels during 
impact driving foundation piles using a 4,000 kilojoules (kJ) hammer 
are below those modeled assuming a 10-dB reduction and suggest, in 
fact, that two systems may sometimes be necessary to reach the targeted 
10-dB reductions. While NMFS is requiring that Dominion Energy reduce 
sound levels to at or below the model outputs analyzed (assuming a 
reduction of 10 dB), we are not requiring greater reduction as it is 
currently unclear (based on measurements to date) whether greater 
reductions are consistently practicable for these activities, even if 
multiple NAS systems are used.
    In response to the recommendation by the commenters for NMFS to 
confirm that a 10-dB reduction is achieved, NMFS clarifies that, 
because no unattenuated piles would be driven, there is no way to 
confirm a 10-dB reduction; rather, in-situ SFV measurements will be 
required to confirm that sound levels are at or below those modeled 
assuming a 10-dB reduction.
    In addition to the SFV requirements in the proposed rule, we added 
to this final rule the requirement that Dominion Energy must conduct 
abbreviated SFV monitoring (consisting of a single acoustic recorder 
placed at an appropriate distance from the pile) on all foundation 
installations for which the complete SFV monitoring, as required in the 
proposed rule, is not carried out consistent with the Biological 
Opinion. NMFS is requiring that these SFV results must be included in 
the weekly reports. Any indications that distances to the identified 
Level A harassment and Level B harassment thresholds for whales must be 
addressed by Dominion Energy, including an explanation of factors that 
contributed to the exceedance and corrective actions that were taken to 
avoid exceedance on subsequent piles.
    Comment 11: Commenters recommended that, for HRG surveys, NMFS 
require the use of PAM and include a 1,000-m (0.62-mi) acoustic 
clearance zone for North Atlantic right whales and also increase the 
visual clearance zone to 1,000 m for right whales. Another commenter 
recommended that NMFS increase the size of the visual clearance and 
shutdown zones during HRG surveys to 500 m (0.31 mi) for all other 
large whales. They also suggested that HRG surveys should be halted or 
shut down if North Atlantic right whales or other large whales are 
acoustically detected.
    One commenter who also supported PAM during HRG surveys, stated 
that the real-time PAM system should be capable of detecting protected 
species at least 10,000 m (6.2 mi) and would be undertaken by a vessel 
other than the pile driving vessel or from a stationary unit to avoid 
masking effects of the hydrophone. The commenter also suggested that 
PAM be used during all impact pile driving, during vibratory pile 
driving of the cofferdams, and during HRG surveys.
    Response: NMFS disagrees PAM is necessary during HRG surveys. While 
NMFS agrees that PAM can be an important tool for augmenting detection 
capabilities in certain circumstances, its utility in further reducing 
impacts during HRG survey activities is limited. First, it is generally 
accepted that, even in the absence of additional acoustic sources, 
using a towed passive acoustic sensor to detect baleen whales 
(including North Atlantic right whales) is not typically effective 
because the noise from the vessel, the flow noise, and the cable noise 
are in the same frequency band and will mask the vast majority of 
baleen whale calls. Vessels produce low-frequency noise, primarily 
through propeller cavitation, with main energy in the 5-300 Hertz (Hz) 
frequency range. Source levels range from about 140 to 195 decibel (dB) 
re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), 
depending on factors such as ship type, load, and speed, and ship hull 
and propeller design. Studies of vessel noise show that it appears to 
increase background noise levels in the 71-224 Hz range by 10-13 dB 
(Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM 
systems employ hydrophones towed in streamer cables approximately 500 m 
behind a vessel. Noise from water flow around the cables and from 
strumming of the cables themselves is also low-frequency and typically 
masks signals in the same range. Experienced PAM operators 
participating in a recent workshop (Thode et al., 2017) emphasized that 
a PAM operation could easily report no acoustic encounters, depending 
on species present, simply because background noise levels rendered any 
acoustic detection impossible. The same workshop report stated that a 
typical eight-element array towed 500 m behind a vessel could be 
expected to detect delphinids, sperm whales, and beaked whales at the 
required range, but not baleen whales, due to expected background noise 
levels (including seismic noise, vessel noise, and flow noise).
    Second, for HRG surveys, the area expected to be ensonified above 
the Level B harassment threshold is relatively small (a maximum of 100 
m via the GeoMarine Dual 400 Sparker at 800 joules); this reflects the 
fact that the source level is comparatively low and the intensity of 
any resulting impacts would be lower level. Further, the small 
harassment zone (and 500 m clearance and shutdown zones) are likely to 
be effectively monitored via visual means and PAM will only detect a 
portion of any animals exposed within these small zones. Together these 
factors support the limited value of PAM for use in reducing take with 
smaller zones.
    NMFS also disagrees that the zones for North Atlantic right whales 
and other large whales should be expanded. As described in the proposed 
and final rules, the required 500-m clearance zone for North Atlantic 
right whales exceeds the modeled distance to the largest 160-dB Level B 
harassment isopleth (100 m (0.06 mi) during sparker use) by a large 
margin, minimizing the likelihood that they will be harassed in any 
manner by this activity. The 500-m distance is five times the estimated 
isopleth for the largest 160-dB Level B harassment threshold and we do 
not see a need to increase this further. Further, the commenters do not 
provide scientific information for NMFS to consider to support their 
recommendation to expand the clearance zone. As such, NMFS recognizes 
that requiring zones beyond those that meet the least practicable 
adverse impact standard could delay the project such that construction 
activities are extended to

[[Page 4379]]

the point that it is actually less beneficial for the species. Given 
that these surveys are relatively low impact, and that NMFS has 
prescribed a precautionary North Atlantic right whale clearance zone 
that is larger (500 m) than the largest estimated harassment zone (100 
m), NMFS has determined that an increase in the size of the clearance 
and shutdown zones for North Atlantic right whales to 1,000 m is not 
warranted or practicable and the commenter does not provide new 
information supporting this comment. Similarly, increasing the size of 
the clearance and shutdown zones for other large whales to 500 m during 
HRG surveys is also not warranted or practicable and the commenter does 
not provide new information supporting this comment.
    Regarding the use of PAM during cable landfall construction, 
although distances above the Level B harassment threshold are larger 
than for HRG surveys (3,100 m for temporary cofferdams and 1,450 m for 
temporary goal posts), the effects are not expected to rise to the 
level that would constitute Level A harassment (injurious take). Noise 
generated during cable landfall construction is of relatively short 
duration, low level, and in nearshore waters (which tend to be calmer 
than offshore) where PSO monitoring will be sufficient for detecting 
marine mammals to implement mitigation that effects the least 
practicable adverse impact on marine mammals. Similar to HRG surveys, 
given that the effects to marine mammals from cable landfall 
construction are expected to be limited to low level behavioral 
harassment (Level B harassment) even in the absence of mitigation 
(i.e., no Level A harassment is expected or authorized), the limited 
additional benefit anticipated by adding this detection method for the 
short term cable landfall pile driving is not warranted or necessary to 
ensure the least practicable adverse impact on the affected species or 
stocks and their habitat.
    Regarding the use of passive acoustic monitoring to implement the 
clearance and shutdown zones during foundation installation, as 
described in the proposed rule, NMFS is requiring the use of PAM to 
monitor 10 km zones around the piles and that the systems be capable of 
detecting marine mammals during pile driving within this zone. In this 
final rule, Tables 25 and 26 clearly specify this 10-km PAM monitoring 
zone. Dominion Energy is required to submit a PAM Plan to NMFS for 
approval at least 180 days prior to the planned foundation pile driving 
start date. NMFS will not approve a Plan where hydrophones used for PAM 
would be deployed from the pile driving vessel as this would result in 
hydrophones inside the bubble curtains, which would clearly be 
ineffective for monitoring; therefore, there is no need to explicitly 
state in this rule that this would not be allowed.
    As described in the Mitigation section, NMFS has determined that 
the prescribed mitigation requirements are sufficient to effect the 
least practicable adverse impact on all affected species or stocks.
    Comment 12: The Commission suggested that NMFS' proposed minimum 
visibility zone (2 km) during foundation pile driving is insufficient 
given that the Level A harassment zone for impact pile driving ranges 
from 3.2 to 5.7 km and that the Level B harassment zones range from 5.5 
to 6.2 km for North Atlantic right whales.
    Response: NMFS appreciates the suggestion by the Commission but 
does not agree that an increase of the minimum visibility zone is 
warranted. When modeling the PTS threshold zone sizes, Tetra Tech 
produced acoustic ranges (R95). Acoustic ranges 
represent the distance to a harassment threshold based on sound 
propagation through the environment independent of any receiver. That 
is, the R95 values represent the distance at which 
an animal would have to remain from a pile for the entire duration of 
exposure within a 24 hours period (in this case up to 2 monopiles per 
day or 2 pin piles per day). This assumption is unrealistic as we 
anticipate animals will move away from the source upon exposure as the 
area is primarily a North Atlantic right whale migration corridor and 
we do not anticipate whales to remain in the area for extended periods 
of time throughout the days. Further, the acoustic ranges are 
conservative in that they are calculated from 3D sound fields and then, 
at each horizontal sampling range, the maximum received level that 
occurs within the water column is used as the received level at that 
range. These maximum-over-depth (Rmax) values are then 
compared to predetermined threshold levels to determine acoustic and 
exposure ranges to Level A harassment and Level B harassment zone 
isopleths. However, the ranges to a threshold typically differ among 
radii from a source, and also might not be continuous along a radii 
because sound levels may drop below threshold at some ranges and then 
exceed threshold at farther ranges. To minimize the influence of these 
inconsistencies, 5 percent of the farthest such footprints are 
typically excluded from the model data. The resulting range, 
R95, is then chosen to identify the area over which 
marine mammals may be exposed above a given threshold, because, 
regardless of the shape of the maximum-over-depth footprint, the 
predicted range encompasses at least 95 percent of the horizontal area 
that would be exposed to sound at or above the specified threshold. 
R95 excludes ends of protruding areas or small 
isolated acoustic foci not representative of the nominal ensonified 
zone. Finally, pile driving would occur during times when North 
Atlantic right whales are least likely to be in the Project Area. 
Creating a large minimum visibility distance despite the rarity of 
whales would unnecessarily delay the project such that work would be 
extended; thereby increasing the timeframe over which marine mammals 
may be exposed to construction activities.
    For these reasons, NMFS does not believe it necessary to increase 
this zone size. Furthermore, even with the larger acoustic ranges 
produced from the conservative modeling, the minimum visibility zone 
does not differ greatly from those presented for other nearby projects 
which calculated distances to thresholds in consideration of animal 
movement (off of New Jersey, final Ocean Wind 1-1.65 km in the summer 
and 2.5 km in the winter; proposed Atlantic Shores South--1.9 km).
    Comment 13: A commenter questioned why there was a depth 
restriction in Dominion Energy's Protected Species Mitigation and 
Monitoring Plan (PSMMP) when vessel speeds apply and recommended 
additional vessel restrictions regarding 10 kn or less within specific 
areas to reduce the risk of vessel strike on cetaceans.
    Response: NMFS did not restrict any of the vessel speed measures to 
apply at specific depths; instead the measures are designed to apply to 
any and all vessel usage by Dominion Energy. Dominion Energy's project 
vessels would be restricted to 10 kn or less in certain circumstances, 
which include and in cases, go beyond existing vessel speed 
regulations. NMFS has included several measures in both the proposed 
and final rules that are sufficient to reasonably avoid vessel strike 
(see response to Comment 9 above for additional information). NMFS 
disagrees with the commenter that additional measures are necessary to 
avoid vessel strike.
    Comment 14: A commenter suggested the NMFS should require Dominion 
to deploy additional noise attenuation technologies that, together with 
the double bubble curtain, reach a 15-

[[Page 4380]]

decibel (dB) reduction or greater in sound exposure level (``SEL'').
    Response: NMFS acknowledges that underwater noise levels should be 
reduced to the greatest degree practicable to reduce impacts on marine 
mammals. As described in both the proposed and final rules, NMFS has 
included requirements for sound noise attenuation methods that 
successfully reduce foundation installation noise levels to, at a 
minimum, the levels modeled assuming 10-dB reduction. While NMFS is 
requiring that Dominion Energy reduce sound levels to equal or be below 
the model outputs analyzed (assuming a reduction of 10 dB), we are not 
assuming greater reduction as it is currently unclear (based on 
measurements to date) whether greater reductions are consistently 
practicable for these activities, even if multiple NAS systems are 
used. Preliminary sound measurements from South Fork Wind indicate that 
with multiple NAS systems, measured sound levels during impact driving 
foundation piles using a 4,000-kJ hammer are at or below those modeled 
assuming a 10-dB reduction and suggest, in fact, that two systems may 
sometimes be necessary to reach the targeted 10-dB reductions. In 
response to the recommendation by the commenters for NMFS to confirm 
that a 10-dB reduction is achieved, NMFS clarifies that, because no 
unattenuated piles would be driven, there is no way to confirm a 10-dB 
reduction; rather, in-situ SFV measurements will be required to confirm 
that sound levels are at or below those modeled assuming a 10-dB 
reduction. To further clarify, Dominion Energy must achieve an 
activity's modeled sound reduction during foundation installation. If 
the modeled sound reduction is not achieved, additional measures are 
required to reduce those noise levels.
    Comment 15: A commenter expresses concern that NMFS' enhanced 
measures for North Atlantic right whales are not broadly applied to 
other ESA-listed large whale species. They also expressed concern over 
the Potential Biological Removal (PBR) for each stock not being 
assessed cumulatively based on the take authorized for CVOW-C and other 
threats to large whales.
    Response: The commenter inappropriately conflates Level A 
harassment (e.g., auditory injury, PTS) and Level B harassment (i.e., 
behavioral disturbance) with mortality and serious injury through their 
reference to PBR levels. A stock's PBR level is ``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.'' PBR is not an appropriate metric to 
evaluate the take allowed under the CVOW regulations in the manner 
suggested by the commenter, which is take by Level A harassment or 
Level B harassment, not mortality or serious injury (i.e., removals 
from the population). NMFS has described and used an analytical 
framework that is appropriate. We consider levels of ongoing 
anthropogenic mortality from other sources, such as commercial 
fisheries, in relation to calculated PBR levels as part of the 
environmental baseline in our negligible impact analysis.
    Regarding cumulative impacts, NMFS refers the commenter to the 
response found in Comment 28 as the same information applies here. 
Furthermore, while the commenter is correct that enhanced mitigation 
and monitoring measures are required for North Atlantic right whales 
specifically, given their unique and precarious position, and that some 
of these measures will have beneficial effects on other species as 
well. For example, while PAM detections of a North Atlantic right 
whale, at any distance, would necessitate a shutdown/delay to any 
specified activity, we expect that other low-frequency specialists will 
benefit from the use of PAM (i.e., detections) as these will provide 
additional awareness to complement PSOs on visual observation. While we 
do acknowledge that the ``at any distance'' provision is not a blanket 
requirement across all species, we believe that the additional 
awareness provided by PAM, in addition to the conservative zone sizes 
will also reduce negative impacts to these other species. Requiring 
shutdowns/delays ``at any distance'' for all large whale species, 
regardless of status, could potentially extend the duration project 
activities would be necessary, as more frequent shutdowns/delays would 
otherwise be needed. There are offsetting benefits to completing the 
project activities (specifically foundation installation) in a shorter 
amount of time, as extending these construction periods due to more 
frequent shutdowns runs the risk of extending activities into months 
where species densities are higher in the Project Area.
    Comment 16: A commenter recommended that NMFS work more to 
encourage the use of gravity-based and suction bucket foundations 
rather than piled foundations, as these foundations have demonstrated a 
potential for reduced impacts to marine mammals while providing 
potentially more flexibility to developers. They further suggested 
that, if this isn't possible for CVOW-C or other future projects, which 
NMFS works with BOEM to encourage measures that could lead to greater 
levels of noise reduction during pile driving.
    Response: NMFS agrees that there are sound minimization benefits to 
marine mammals when using non-pile driven foundations, such as the 
results shown in recent publications (e.g., Potlock et al., 2023). 
However, it is not within NMFS' authority to determine the applicant's 
specified activities. NMFS is required to authorize the requested 
incidental take if it finds such incidental take of small numbers of 
marine mammals by the requestor while engaging in the specified 
activities within the specified geographic region will have a 
negligible impact on such species or stock and, where relevant, will 
not have an unmitigable adverse impact on the availability of such 
species or stock for subsistence uses. As described in this notice of 
final rulemaking, NMFS finds that small numbers of marine mammals may 
be taken relative to the population size of the affected species or 
stocks and that the incidental take of marine mammals from all of the 
specified activities combined will have a negligible impact on all 
affected marine mammal species or stocks.
    NMFS continually supports efforts to reduce ocean noise across 
various industries, including OSW. For example, NOAA's Ocean Noise 
Strategy (https://oceannoise.noaa.gov/) articulates the agency's vision 
for addressing ocean noise impacts to marine species, and NMFS supports 
BOEM's Recommendations for Offshore Wind Project Pile Driving Sound 
Exposure Modeling and Sound Field Measurement document and BOEM's 
Nationwide Recommendations for Impact Pile Driving Sound Exposure 
Modeling and Sound Field Measurement for Offshore Wind Construction and 
Operations Plans (https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/FINAL%20Nationwide%20Recommendations%20for%20Impact%20Pile%20Driving%20Sound%20Exposure%20Modeling%20and%20Sound%20Field%20Measurement%20%28Acoustic%20Modeling%20Guidance%29.pdf). NMFS and BOEM also are jointly 
working on the North Atlantic Right Whale and Offshore Wind Strategy 
(https://www.noaa.gov/news-release/noaa-and-boem-announce-draft-offshore-wind-north-atlantic-right-whale-strategy). All of these 
documents encourage reducing ocean noise,

[[Page 4381]]

including BOEM's establishment of quieting performance standards for 
OSW and conducting some level of SFVs on every pile installed, which 
NMFS has provided feedback on and supports. Finally, NMFS is 
collaborating with BOEM and the Department of Energy (DOE) on a recent 
funding notice focused on installation noise reduction and reliable 
moorings for offshore wind and marine energy (found here at: https://www.energy.gov/eere/wind/articles/funding-notice-installation-noise-reduction-and-reliable-moorings-offshore-wind?utm_medium=email&utm_source=govdelivery).
    Comment 17: The commenters recommend that NMFS prohibit site 
assessment and site characterization activities during times of highest 
risk to North Atlantic right whales, using the best available science 
to define high-risk timeframes. In addition, the commenters suggest 
that NMFS should develop a real-time mitigation and monitoring protocol 
to dynamically manage the timing of site assessment and 
characterization activities to ensure those activities are undertaken 
during times of lowest risk for all relevant large whale species.
    Response: As discussed in Comment 9, given the required vessel 
strike avoidance mitigation measures and small Level A harassment and 
Level B harassment isopleths for HRG surveys (54.2 m and 100 m, 
respectively), no Level A harassment, serious injury, or mortality is 
anticipated or authorized for this activity for any species, and the 
comparatively limited number of authorized takes by Level B harassment 
is expected to result in low-level impacts. The largest modeled Level B 
harassment zone size for the GeoMarine Dual 400 sparker (100 m) is 
already much smaller than the required separation and shutdown 
distances for North Atlantic right whale (500 m) and any unidentified 
large whale that would be treated as if it were a North Atlantic right 
whale. Furthermore, the proposed rule and this final rule include a 
framework of mitigation and monitoring measures designed to effect the 
least practicable adverse impact on marine mammals (see 50 CFR 
217.294(e), 217.295). Therefore, NMFS disagrees there is a need to 
prohibit such surveys during ``high-risk timeframes'' and develop a 
dynamic management system.
    Comment 18: One commenter recommended that all vessels responsible 
for crew transport (i.e., service operating vessels) should use 
automated thermal detection systems to assist monitoring efforts while 
vessels are in transit.
    Response: NMFS is requiring that all vessels, when transiting, must 
utilize trained, dedicated observers and, in the case of reduced 
visibility, use alternate technology to maintain visual monitoring, 
which may include infrared technologies (a type of thermal detection 
system). Dominion Energy is required to submit a Vessel Strike 
Avoidance Plan which will describe the type of technologies they 
propose to use to monitor for marine mammals. NMFS will evaluate that 
plan and determine if different or additional technology is required.
    Comment 19: The commenter asserted that to minimize the impacts of 
underwater noise from HRG surveys to the fullest extent feasible, 
project proponents should select and operate sub-bottom profiling 
systems at power settings that achieve the lowest practicable source 
level for the objective.
    Response: NMFS agrees with the suggestion made by the commenters 
that underwater noise levels should be reduced to the greatest degree 
practicable to reduce impacts on marine mammals. NMFS also agrees with 
the suggestion that Dominion Energy should utilize its HRG acoustic 
sources at the lowest practicable source level to meet the survey 
objective and has incorporated this requirement into the final rule 
(see Sec.  217.294(e)(4)).
    Comment 20: A commenter suggested that NMFS require: (1) at least 
15 dB of sound attenuation from pile driving, with a minimum of 10 dB 
to be required; (2) field measurements be conducted on the first pile 
installed and the data must be collected from a random sample of piles 
through the construction period, although the commenter specifically 
notes that they do not support field testing of unmitigated piles; and 
(3) that all sound source validation reports of field measurements be 
evaluated by both NMFS and BOEM prior to additional piles being 
installed and that these reports be made publicly available. Another 
commenter has suggested that NMFS strengthen its requirement to 
maximize the level of noise reduction possible for the CVOW-C Project, 
utilizing 10 dB as the minimum only but meeting upwards of 20 dB of 
noise reduction. To support their assertion, they cited datasets by 
Bellmann et al. (2020 and 2022). They also recommended that NMFS 
require the ``best commercially available combined NAS technology'' to 
achieve noise reduction and attenuation.
    Response: NMFS acknowledges that previous measurements (see 
Bellmann, 2019; Bellmann et al., 2020) indicate that the deployment of 
double big bubble curtains should result in noise reductions beyond the 
assumed 10 dB. However, when sound field verifications (SFV) 
measurements are conducted during construction, several factors come 
into play in determining how well modeled levels/isopleths correspond 
to those measured in the field, such as the level at the source, how 
well the noise travels in the environment, and the effectiveness of the 
deployed NAS across a broad range of frequencies. For these reasons, 
NMFS conservatively assumes only a 10-dB noise reduction. Furthermore, 
if SFV measurements consistently demonstrate that distances to 
harassment thresholds are less than those modeled assuming 10 dB 
attenuation, adjustments in monitoring and mitigation can be made by 
NMFS, upon request by Dominion Energy. We reiterate that there is no 
requirement to achieve 10-dB attenuation as no unattenuated piles would 
be driven; therefore, it is not possible to collect the data necessary 
to enforce this requirement. However, as described in Comments 10 and 
14, we are requiring the developer to meet the noise levels modeled, 
assuming 10-dB attenuation. NMFS is also actively engaged with other 
agencies and offshore wind developers on furthering quieting 
technologies.
    It is important to note that the assumed 10-dB reduction is not a 
limit, it is a conservative estimate of the likely achievable noise 
reduction, which along with all other modeling assumptions, allows for 
estimation of marine mammal impacts and informs monitoring and 
mitigation. However, we have incorporated requirements to add or modify 
NAS in the event that noise levels exceed those modeled.
    NMFS notes that Dominion Energy must conduct SFV on three monopiles 
and on all OSS foundations (n=12 pin piles total) and, at this time, 
NMFS does not support unmitigated field testing for pile installation. 
If SFV 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), Dominion Energy may request a modification of the 
clearance and shutdown zones for foundation pile driving of monopiles. 
If requested and upon receipt of an interim SFV report, NMFS may adjust 
zones (i.e., Level A harassment, Level B harassment, clearance, 
shutdown, and/or minimum visibility zone) to reflect SFV measurements. 
As part of the updates to the final rule, NMFS also requires 
maintenance checks and testing of NAS

[[Page 4382]]

systems before each use to ensure the NAS is usable and the system is 
able to achieve the modeled reduction, this information would be 
required to be reported to NMFS within 72 hours of an installation but 
before the next installation occurs.
    Lastly, NMFS agrees that SFV reports (sound source validation 
reports) to NMFS should be required and evaluated by the agencies prior 
to further work commencing. NMFS agrees that the final SFV reports that 
have undergone quality assurance/quality control (QA/QC) by the 
agencies and include all of the required information to support full 
understanding of the results will be made publicly available; however, 
interim results without full review and all of the other supporting 
information are not ripe or appropriate for public availability.
    Comment 21: A commenter stated that the seasonal restriction put 
into place for foundation pile driving for North Atlantic right whales 
should be assessed with regards to other marine mammal species, such as 
humpback whales, which may be present in higher numbers in the summer. 
They further suggested that additional protective approaches are needed 
for other species that may be present, such as the use of a real-time 
monitoring and mitigation system. Other commenters suggested dynamic 
management of activity temporal restrictions during project 
construction based on near real-time monitoring.
    Response: NMFS acknowledges that the seasonal restriction for 
impact pile driving is to effect the least practicable adverse impact 
on North Atlantic right whales; however, NMFS notes that this seasonal 
restriction provides additional protections to large whale species that 
occur off of Virginia during summer months. For example, humpback 
whales, based on the Duke University density models (Roberts et al., 
2023), have higher occurrences in the late winter/early spring period 
(January through April) and reach their highest numbers within May and/
or June. Subsequent declines in densities are noted after peak summer. 
Fin whales demonstrate a fairly year-round presence off of Virginia, 
with the highest densities occurring from November through May. We note 
that the highest densities are located in more offshore waters than the 
CVOW-C Project would be located and generally more northern in 
distribution. Harbor porpoises are primarily located off of Virginia 
from November through April, per Roberts et al. (2023). These durations 
almost all fall within the large seasonal restriction required by NMFS 
(November through April), which would reduce much of the impact to 
animals transiting through the area. Furthermore, Dominion Energy's 
analysis and take numbers were run assuming average seasonal densities, 
which may be slightly higher given increased densities when averaged 
with lower ones. Given that we expect marine mammals to actively be 
transiting through the area, rather than residing, impacts should be 
further lessened. While we acknowledge that some whales, such as the 
North Atlantic right whale, are acoustically detected year-round off of 
Virginia (Salisbury et al., 2015), no scientific information or data 
supports the offshore Virginia waters as a Biologically Important Area 
for any other protected marine mammal species (besides the North 
Atlantic right whale migratory corridor). However, this is not to say 
that these species do not occur in these waters, but simply that the 
Virginia offshore waters are not primary habitat for essential life 
functions, such as foraging or calving, for other protected species. 
Instead, marine mammals primarily utilize these waters to transit to or 
from a more viable/important habitat.
    Lastly, NMFS agrees that a near real-time monitoring system and 
protocols for North Atlantic right whales and other large whale species 
is a prudent and practicable measure and, as such, included real-time 
PSO monitoring and near real-time PAM (where practicable and effective 
(i.e., foundation pile driving) in the proposed rule and the final rule 
(see Comments 21 and 22). Monitoring will inform whether other 
mitigation measures, such as delaying or shutting down a source, are 
triggered.

Monitoring, Reporting, and Adaptive Management

    Comment 22: Commenters recommended that NMFS require real-time 
notifications of project activities (e.g., HRG surveys, pile driving, 
etc.) and immediate notifications of any strandings or sightings of 
North Atlantic right whales or other protected species. Commenters also 
recommended NMFS make reports publicly available.
    Response: The commenter did not identify why real-time notification 
to NMFS regarding project activities is necessary and NMFS does not 
agree this is necessary or practicable. Dominion Energy is required to 
submit weekly reports to NMFS during foundation installation, which 
includes project activities. It is not necessary for NMFS to track, in 
real-time, project activities.
    NMFS agrees with the commenter that North Atlantic right whale 
reporting should be done in a timely manner. The proposed and final 
rule each contain situational reporting requirements for every North 
Atlantic right whale sighting or acoustic detection immediately but 
also recognizes the potential for immediate communication to be 
challenging. In both of the proposed and final rules, NMFS has included 
a requirement that if a North Atlantic right whale is observed at any 
time by PSOs or project personnel, Dominion Energy 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, the U.S. 
Coast Guard, and the Right Whale Sightings Advisory System (RWSAS). 
This includes stranded animals. If the North Atlantic right whale is 
stranded, 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. Any acoustic 
detection of a North Atlantic right whale would be reported to NMFS as 
soon as possible, 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).
    PSOs and PAM operators are required to follow strict reporting 
requirements (i.e., weekly and monthly (during foundation 
installation), and annually and situationally (all activities)) to 
document the sighting, behavior, species, etc. NMFS does not consider 
real-time reporting necessary, nor have we required it. ``Real-time'' 
reporting constitutes immediate or instantaneous notifications at the 
time of the sighting or observation. Instead, NMFS does, in the 
Monitoring and Reporting section, require ``near real-time'', which 
allows the notification to happen in a timely manner but after a 
reasonable delay when on the water. Weekly and monthly reports would be 
required for the duration of foundation installation. The final rule 
requires annual reports on sightings, activities, and take resulting 
from the project, and a 5-year report on all visual and acoustic 
monitoring. Situational reporting is required for any event that might 
need more direct NMFS-intervention (such as an adaptive

[[Page 4383]]

management need), due to the sighting of a large whale species, or an 
unexpected marine mammal interaction occurred or was detected. We also 
note that the commenter does not provide justification regarding what 
actions NMFS would be expected to undertake for real-time reporting, or 
why that would be necessary. In the event of sighting a dead or injured 
marine mammal, NMFS has included specific situational reporting 
requirements that would need to be undertaken as soon as feasible but 
within 24 hours. This feasibility requirement is necessary as there are 
many different situations that could occur on the water that could 
reduce communication potential, so NMFS allows the developer some time 
to maintain or recover communication if necessary. Because of this, 
NMFS does not see any issues with its requirements for situational 
reporting and feasibility and has opted not to change anything herein. 
The only circumstance wherein immediate reporting is required is in the 
unforeseen instance that a Project vessel strikes a marine mammal. The 
non-auditory injury or death of a marine mammal caused by vessel strike 
must be immediately reported to NMFS, and Dominion Energy must 
immediately cease all on-water activities until the NMFS Office of 
Protected Resources is able to review the circumstances of the incident 
and determine what, if any, additional measures are appropriate to 
ensure compliance with the terms of the LOA. All final reports 
submitted to NMFS will be included on the website for availability to 
the public.
    Comment 23: The commenter expressed concern regarding the PAM 
details and protocol as there is some variation on the ``target'' 
frequencies detectable based on the type of equipment chosen. The 
commenter stated that because of this ambiguity, ``it is not possible 
to assess what the detection capabilities will be based on the 
information.''
    The commenter suggested that the use of a PAM system with 
localization capabilities, if available, should provide sufficient 
information regarding presence within the clearance/shutdown zone, but 
also recommended the use of other technologies (e.g., semi-automated 
infrared systems, drones) to aid in marine mammal observation.
    Response: As described in the proposed rule (88 FR 28656, May 4, 
2023), Dominion Energy is required to submit a detailed PAM Plan to 
NMFS for approval that describes the PAM system(s) proposed for use. 
While the systems are not yet finalized (hence the variability noted by 
the commenter), NMFS has established criteria in the proposed and final 
rules (e.g., the system must be capable of detecting baleen whales out 
to 10 km from the pile being installed). NMFS will evaluate if the 
bandwidth capabilities of the PAM system proposed meet these criteria. 
Furthermore, our Adaptive Management provision within the final rule 
allows us to adapt to new technology and information, which allows us, 
in discussions with Dominion Energy, to modify the PAM monitoring, as 
determined to be applicable.
    NMFS disagrees that PAM alone should be used to monitor marine 
mammals and is requiring both visual and acoustic monitoring for 
specific specified activities. As described in the proposed rule, NMFS 
requires that Dominion Energy employ both visual and PAM methods as 
both approaches aid and complement each other (Van Parijs et al., 
2021). NMFS has also considered the use of semi-automated infrared 
systems to support visual monitoring. While Dominion Energy is free to 
propose using such systems, we are not requiring Dominion Energy to use 
such systems at this time (see Comment 23). Similar to the PAM Plan, 
NMFS requires Dominion Energy to submit, for approval, a Pile Driving 
Monitoring Plan that meets the criteria required in this final rule 
(e.g., visually observe for marine mammals to select distances). 
Similar to PAM, the Adaptive Management provision in the final rule 
allows for technological developments in monitoring or mitigation to be 
implemented, in coordination with Dominion Energy.
    Comment 24: Commenter suggested that NMFS require tracking and 
monitoring for ``unusual patterns'' in protected species strandings 
specifically related to HRG surveys and other construction activities.
    Response: As NMFS has explained in the proposed rule and in this 
final rule, strandings (e.g., mortality) are not an anticipated outcome 
of the specified activities, including HRG surveys, and there is no 
evidence to suggest otherwise. Further, marine mammal strandings are 
fully tracked and monitored via NMFS' Marine Mammal Health and 
Stranding Response Program (https://www.fisheries.noaa.gov/national/marine-life-distress/marine-mammal-health-and-stranding-response-program). As such, NMFS disagrees that Dominion Energy should be 
required to track strandings.
    Comment 25: A commenter requested NMFS define the frequency at 
which we would review any new information for modifications to the LOA 
via the Adaptive Management provision. A commenter recommended this 
occur once a quarter, while allowing for a mechanism to undertake 
review and adaptive management on an ad hoc basis if a serious issue is 
identified (e.g., if unauthorized takes by Level A harassment are 
reported or if serious injury or mortality occurs). They have also 
recommended that NMFS incorporate review by independent subject-matter 
experts to increase transparency, to provide an opportunity to share 
information, and to allow for the input of additional scientific 
expertise.
    Response: We disagree that the frequency at which information is 
reviewed should be defined in the Adaptive Management provision. The 
purpose of the Adaptive Management is to allow for the incorporation of 
new information as it becomes available, which could mean advancements 
and new information becomes available quickly (i.e., days or weeks) 
that would necessitate NMFS to consider adapting the issued LOA, or 
over long periods of time as robust and conclusive information becomes 
available (i.e., months or years). NMFS will be reviewing interim 
reports as they are submitted; hence, the quarterly review, as 
suggested by the commenter, is not necessary. NMFS retains the ability 
to make decisions as information becomes available, and after 
discussions with Dominion Energy about feasibility and practicability.
    Regarding the suggestion for ad hoc changes in the event that 
additional take by Level A harassment or take via serious injury/
mortality of a marine mammal occurs, we do not agree with the 
suggestion by the commenter. NMFS has included two relevant provisions 
in its final rule that state that ``[t]ake by mortality or serious 
injury of any marine mammal species is not authorized'' and that ``it 
is unlawful for any person to . . . take any marine mammal specified in 
the LOA in any manner other than as specified in the LOA.'' We refer 
the commenter to the ``Prohibitions'' portion of the regulatory text 
(see Sec.  217.293). In the event Dominion Energy's project takes any 
marine mammals in a manner that has not been authorized in the final 
rule (see Sec.  217.293) these would be in violation of the MMPA and 
regulations and NMFS would undertake appropriate actions, as determined 
to be necessary (see 16 U.S.C. 1371(a)(5)(B)).
    Lastly, regarding independent review, NMFS disagrees that such 
reviews should be incorporated into the adaptive management process. 
The MMPA and its implementing regulations require that incidental take

[[Page 4384]]

regulations be established based on the best available information and 
the MMPA does not proscribe use of independent, subject matter expert 
review of NMFS' determinations outside of the public comment process.
    Comment 26: Commenters stated that the regulations must include a 
requirement for all phases of the CVOW-C site characterization to 
subscribe to the highest level of transparency, including frequent 
reporting to federal agencies, requirements to report all visual and 
acoustic detections of North Atlantic right whales and any dead, 
injured, or entangled marine mammals to NMFS or the U.S. Coast Guard as 
soon as possible and no later than the end of the PSO shift. A 
commenter stated that to foster stakeholder relationships and allow 
public engagement and oversight of the permitting, the ITA should 
require all reports and data to be accessible on a publicly available 
website. Another commenter also suggested that all quarterly reports of 
PSO sightings must be made publicly available to continue to inform 
marine mammal science and protection.
    Response: NMFS notes the commenters' recommendations to report all 
visual and acoustic detections of North Atlantic right whales and any 
dead, injured, or entangled marine mammals to NMFS are consistent with 
the proposed rule and this final rule (see Situational Reporting). We 
refer the reader to Sec.  217.295(g)(13), (15)(i)-(v) of the 
regulations for more information on situational reporting. NMFS 
requires North Atlantic right whale sightings to be reported 
immediately (if not feasible, as soon as possible and no longer than 24 
hours after the sighting). Similarly, if a North Atlantic right whale 
is acoustically detected at any time by a project-related PAM system, 
Dominion Energy must report the detection as soon as possible to NMFS, 
but no longer than 24 hours after the detection. Daily visual and 
acoustic detections of North Atlantic right whales and other large 
whale species along the Eastern Seaboard, as well as Slow Zone 
locations, are publicly available on WhaleMap (https://whalemap.org/whalemap.html). Further, recent acoustic detections of North Atlantic 
right whales and other large whale species are available to the public 
on NOAA's Passive Acoustic Cetacean Map website (https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map). 
Given the open access to the resources described above, NMFS does not 
concur that public access to quarterly PSO reports is warranted and we 
have not included this measure in the authorization. However, NMFS will 
post all final reports to our website. We refer the commenters to Sec.  
217.295(g) for more information on reporting requirements in the 
regulations.

Effects Assessment

    Comment 27: Commenters stated that NMFS must use the more recent 
and best available science, including population estimates, in 
evaluating impacts to North Atlantic right whales, given its critically 
endangered status. This includes using updated population estimates, 
recent habitat usage patterns for the project area, and a revised 
discussion of the acute, chronic, and cumulative stress on North 
Atlantic right whales in the region.
    Response: NMFS has used the best available science in its analysis. 
Since issuance of the proposed rule, NMFS has finalized the 2022 Stock 
Assessment Report (SAR) indicating the North Atlantic right whale 
population abundance is estimated as 338 individuals (confidence 
interval: 325-350; 88 FR 4162, January 24, 2023). NMFS has used this 
most recent best available information in the analysis of this final 
rule. This new estimate, which is based off the analysis from Pace et 
al. (2017) and subsequent refinements found in Pace (2021), is included 
by reference in the draft and final 2022 Stock Assessment Reports 
(https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment reports) and provides the most recent 
and best available estimate, including improvements to NMFS' right 
whale abundance model. More recently, in October 2023, NMFS released a 
technical report identifying that the North Atlantic right whale 
population size based on sighting history through 2022 was 356 whales, 
with a 95 percent credible interval ranging from 346 to 363 (Linden, 
2023). NMFS conservatively relies on the lower SAR abundance estimate 
in this final rule. The finalization of the draft to final 2022 SAR did 
not change the estimated take of North Atlantic right whales or 
authorized take numbers, nor affect our ability to make the required 
findings under the MMPA for Dominion Energy's construction activities.
    NMFS cannot require applicants to utilize specific models for the 
purposes of estimating take incidental to offshore wind construction 
activities, but we do require use of the Roberts et al. (2016, 2023) 
density data for all species, which represents the best available 
science regarding marine mammal occurrence.
    The proposed rule includes discussion of North Atlantic right whale 
habitat use in the Project Area, which is located off of Virginia (NMFS 
notes the comments provided incorrectly reference southern New 
England). The proposed rule also includes a discussion of the effects 
of stress on marine mammals from exposure to noise from the project; 
the discussion is informed by the best available science. NMFS has 
carefully reviewed the best available scientific information in 
assessing impacts to marine mammals and recognizes that Dominion 
Energy's activities have the potential to impact marine mammals through 
behavioral effects, stress responses, and temporary auditory masking. 
However, and specifically given the predicted exposures and number of 
authorized takes, NMFS does not expect that the generally short-term, 
intermittent, and transitory marine site characterization survey 
activities planned by Dominion Energy will create conditions of acute 
or chronic acoustic exposure leading to long-term physiological stress 
responses in marine mammals. For pile driving activities, and also 
specifically given the predicted exposures and amount of authorized 
take, we do not expect that the impacts from these activities would 
result in acute or chronic acoustic exposure that would lead to long-
term physiological stress responses as these activities will all be 
localized and performed for limited durations. Additionally, for all 
activities, NMFS has prescribed a robust suite of mitigation and 
monitoring measures, including extended distance shutdowns for North 
Atlantic right whales, seasonal restrictions, dual-PSO and PAM usage, 
and NAS use that are expected to further reduce the duration and 
intensity of acoustic exposure, while limiting the potential severity 
of any possible behavioral disruption. The potential for chronic stress 
was evaluated in making the determinations presented in NMFS' 
negligible impact analyses. Furthermore, the area in which CVOW-C is 
located is not a known feeding habitat for North Atlantic right whales, 
although it is found within the migratory corridor BIA for North 
Atlantic right whales. NMFS does not anticipate that North Atlantic 
right whales would be displaced from the area where Dominion Energy's 
activities would occur, and the commenter does not provide evidence 
that this effect should be a reasonably anticipated outcome of the 
specified activity.
    With respect to cumulative impacts, please see response to Comment 
28.
    Comment 28: Several commenters raised concerns regarding the 
cumulative impacts of the multiple offshore wind projects being 
developed

[[Page 4385]]

throughout the range of marine mammals, including North Atlantic right 
whales, and specifically recommended that NMFS carefully consider the 
discrete effects of each activity and the cumulative effects of the 
suite of approved, proposed, and potential activities on marine mammals 
to ensure that the cumulative effects are not ``excessive'' before the 
promulgation of the final rule.
    Another member of the public expressed concerns over the number of 
North Atlantic right whales that have ``already been killed'' when 
combined with other offshore wind projects along the East Coast.
    A member of the public has asked how NOAA is tracking the takes of 
several species, including marine mammals, and where this list can be 
found for the public. They have also asked how NOAA will determine an 
``acceptable'' number of possible harassment/injuries/deaths for each 
species, annually, could occur.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for consideration of the take resulting from other 
activities in the negligible impact analysis. The preamble for NMFS' 
implementing regulations (54 FR 40338, September 29, 1989) states, in 
response to comments, that the impacts from other past and ongoing 
anthropogenic activities are to be incorporated into the negligible 
impact analysis via their impacts on the baseline. Consistent with that 
direction, NMFS has factored into its negligible impact analysis the 
impacts of other past and ongoing anthropogenic activities via their 
impacts on the baseline (e.g., as reflected in the density/distribution 
and status of the species, population size and growth rate, and other 
relevant stressors).
    The 1989 final rule for the MMPA implementing regulations also 
addressed public comments regarding cumulative effects from future, 
unrelated activities. There, NMFS stated that such effects are not 
considered in making findings under section 101(a)(5) concerning 
negligible impact. In this case, this ITR as well as other ITRs 
currently in effect or proposed within the specified geographic region, 
are appropriately considered an unrelated activity relative to the 
others. The ITRs are unrelated in the sense that they are discrete 
actions under section 101(a)(5)(A) issued to discrete applicants. 
Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination 
that the take incidental to a ``specified activity'' will have a 
negligible impact on the affected species or stocks of marine mammals. 
NMFS' implementing regulations require applicants to include in their 
request a detailed description of the specified activity or class of 
activities that can be expected to result in incidental taking of 
marine mammals (see 50 CFR 216.104(a)(1)). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(A) is generally defined and described by the 
applicant. Here, Dominion Energy was the applicant for the ITR, and we 
are responding to the specified activity as described in that 
application and making the necessary findings on that basis.
    Through the response to public comments in the 1989 implementing 
regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1) 
that we would consider cumulative effects that are reasonably 
foreseeable when preparing a National Environmental Policy Act (NEPA) 
analysis and (2) that reasonably foreseeable cumulative effects would 
also be considered under section 7 of the ESA for listed species, as 
appropriate. Accordingly, NMFS has adopted an Environmental Impact 
Statement (EIS) written by BOEM and reviewed by NMFS as part of its 
inter-agency coordination. This EIS addresses cumulative impacts 
related to Dominion Energy and substantially similar activities in 
similar locations. Cumulative impacts regarding the promulgation of the 
regulations and issuance of a LOA for construction activities, such as 
those planned by Dominion Energy, have been adequately addressed under 
NEPA in the adopted EIS that supports NMFS' determination that this 
action has been appropriately analyzed under NEPA. Separately, the 
cumulative effects of Dominion Energy on ESA-listed species, including 
North Atlantic right whales, was analyzed under section 7 of the ESA 
when NMFS engaged in formal inter-agency consultation with the ESA 
Interagency Cooperation Division within the Office of Protected 
Resources. The Biological Opinion for CVOW-C determined that NMFS' 
promulgation of the rulemaking and issuance of a LOA for construction 
activities associated with leasing, individually and cumulatively, are 
likely to adversely affect, but not jeopardize, listed marine mammals.
    Given that each project is considered its own discrete action, for 
final marine mammal sightings recorded during each relevant project, 
NMFS directs the public to the relevant Project web page, where annual 
and final reports will be published describing the number of marine 
mammals detected within specific harassment zones to date and across 
the entire effective period of the Project.
    Regarding the number of North Atlantic right whales for which take 
has been authorized--NMFS reiterates that only Level B harassment 
(behavioral) is anticipated and has been authorized for this species. 
In looking at the maximum annual authorized number, Dominion Energy is 
authorized to harass no more than 7 North Atlantic right whales 
(assuming each instance of harassment occurs to a different 
individual), representing 2.04 percent of the total population. Over 
the course of 5 years, Dominion Energy would be authorized to harass up 
to 17 individual North Atlantic right whales. We expect that any 
instance of harassment would result in short-term impacts such as 
avoidance of the project area but not abandonment of their migratory 
habitat. Further, as described in the Negligible Impact Analysis and 
Determination Section, the location of the least area (44 km offshore) 
and seasonal restriction on foundation installation pile driving (the 
most impactful activity) provides high conservation benefit and greatly 
minimizes impacts on North Atlantic right whales (as evidenced by the 
very small amount of take authorized despite the size of the project). 
We reiterate that we do not anticipate, nor have we proposed or 
authorized, mortality or serious injury for any marine mammal species 
for the CVOW-C Project. This includes for North Atlantic right whales, 
where no Level A harassment is anticipated or authorized due to the 
mitigation measures required to be implemented by Dominion Energy.
    Comment 29: Several commenters stated that more time and research 
is needed to understand what the impacts of offshore wind may be on the 
ocean and marine life.
    Response: NMFS is required to authorize the requested incidental 
take if it finds the total incidental take of small numbers of marine 
mammals by U.S. citizens while engaging in a specified activity within 
a specified geographic region during a five-year period (or less) will 
have a negligible impact on such species or stock and where 
appropriate, will not have an unmitigable adverse impact on the 
availability of such species or stock for subsistence uses (16 U.S.C. 
1371(a)(5)(A)). While the incidental take authorization must be based 
on the best scientific information available, the MMPA does not allow 
NMFS to delay issuance of the requested authorization on the 
presumption that new information will become available in the future. 
NMFS has made the required findings, based on the best scientific

[[Page 4386]]

information available and has included mitigation measures to effect 
the least practicable adverse impacts on marine mammals.

Other

    Comment 30: Two commenters have encouraged NMFS to issue LOAs on an 
annual basis, rather than a single 5-year LOA, to allow for the 
continuous incorporation of the best available scientific and 
commercial information and to modify mitigation and monitoring measures 
as necessary and in a timely manner, as well as to account for the 
quickly evolving situation for the North Atlantic right whale.
    Response: NMFS appreciates the commenter regarding our ITA process. 
While NMFS acknowledges the commenter's rationale, we do not think it 
is necessary to issue annual LOAs as: (1) the final rule includes 
requirements for annual reports (in addition to weekly and monthly 
requirements) to support annual evaluation of the activities and 
monitoring results, and (2) the final rule includes an Adaptive 
Management provision (see Sec.  217.297(c)) that allows NMFS to make 
modifications to the mitigation, monitoring, and reporting measures 
found in the LOA if new information supports the modifications and 
doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of the measures.
    Comment 31: Several commenters have expressed concern regarding the 
recent whale deaths, which they claim are the result of offshore wind 
activities and pre-construction survey activities. Another commenter 
has suggested that NMFS should consider whether or not authorizing 
Level A harassment or Level B harassment should be permissible given 
the recent elevated public concern about potential impacts on marine 
mammals from offshore wind activities.
    Another commenter has stated that NMFS cannot determine the cause 
of the recent whale deaths accurately without doing necropsies. Because 
of this, the commenter states that NMFS cannot determine that recent 
whale mortalities were not related to ``the whales' diminished ability 
to determine its location due to acoustic damage to its echolocation 
systems'' from offshore wind-related surveys (i.e., HRG and site 
assessment surveys).
    Lastly, another commenter stated that funding should be made 
available to: (1) train PSOs; (2) stranding network organizations to 
carry out necessary carcass recovery, examination, and diagnostic tests 
to exclude acoustic injuries as reasons for strandings associated with 
HRG surveys and/or construction activities; and (3) understand how 
strandings of protected species in unusual patterns during or around 
times where HRG surveys/construction activities occur so that costs can 
be calculated for the relevant response (e.g., offshore whale carcass 
towing, heavy equipment rentals, etc.) as well as to provide 
accountability on the cause of the stranding.
    Response: There is no evidence that noise resulting from offshore 
wind development-related site characterization surveys, which are 
conducted prior to construction, could potentially cause marine mammal 
strandings, and there is no evidence linking recent large whale 
mortalities and currently ongoing surveys. This point has been well 
supported by other agencies, including BOEM and the Marine Mammal 
Commission. The commenters offer no such evidence or other scientific 
information to substantiate their claim. NMFS will continue to gather 
data to help us determine the cause of death for these stranded whales.
    The Marine Mammal Commission's recent statement supports NMFS' 
analysis: ``There continues to be no evidence to link these large whale 
strandings to offshore wind energy development, including no evidence 
to link them to sound emitted during wind development-related site 
characterization surveys, known as HRG surveys. Although HRG surveys 
have been occurring off New England and the mid-Atlantic coast, HRG 
devices have never been implicated or causatively associated with 
baleen whale strandings.'' (Marine Mammal Commission Newsletter, Spring 
2023). There is an ongoing Unusual Mortality Event (UME) for humpback 
whales along the Atlantic coast from Maine to Florida, which includes 
animals stranded since 2016. Partial or full necropsy examinations were 
conducted on approximately half of the whales. Necropsies were not 
conducted on other carcasses because they were too decomposed, not 
brought to land, or stranded on protected lands (e.g., national and 
state parks) with limited or no access. Of the whales examined (roughly 
90), about 40 percent had evidence of human interaction, either ship 
strike or entanglement. Vessel strikes and entanglement in fishing gear 
are the greatest human threats to large whales. The remaining 50 
necropsied whales either had an undetermined cause of death (due to a 
limited examination or decomposition of the carcass) or had other 
causes of death including parasite-caused organ damage and starvation. 
The best available science indicates that only Level B harassment, or 
disruption of behavioral patterns (e.g., avoidance), may occur as a 
result of Dominion Energy's HRG surveys. NMFS emphasizes that there is 
no credible scientific evidence available suggesting that mortality 
and/or serious injury is a potential outcome of the planned survey 
activity.
    Additionally, NMFS has not authorized mortality or serious injury 
in this final rule, and such taking is prohibited under Sec.  
217.292(c) of the regulations and may result in modification, 
suspension, or revocation of an LOA issued under these regulations. 
NMFS notes there has never been a report of any serious injuries or 
mortalities of a marine mammal associated with site characterization 
surveys.
    Furthermore, while NMFS agrees in the value of necropsies in 
determining the cause of death of a stranded marine mammal, NMFS 
stranding partners cannot perform necropsies on every dead animal as 
some of the carcasses were either too decomposed, not brought to land, 
or stranded on protected lands (e.g., national and state parks) with 
limited or no access. Furthermore, and as described on our website, 
large whale necropsies are very complicated, requiring many people and 
typically heavy equipment (e.g., front loaders, etc.). Some whales are 
found dead floating offshore and need to be towed to land for an 
examination. There can be limitations for access and using heavy 
equipment depending on the location where the whale stranded, including 
protected lands (parks or concerns for other endangered species) and 
accessibility (remote areas, tides that prevent access at times of 
day). Also, necropsies are the most informative when the animal died 
relatively recently. Some whales are not found until they are already 
decomposed, which limits the amount of information that can be 
obtained. Finally, funding is limited, and varies by location and 
stranding network partner. For more information on offshore wind and 
whales, we reference the commenter to our website: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales.
    Additionally, a commenter raised a concern regarding potential 
injury to ``echolocation systems''. All large whales that have stranded 
since December 2011, with the exception of three sperm whales, have 
been mysticete (baleen) whales (e.g., humpback whales, minke whales),

[[Page 4387]]

which do not have the ability to echolocate, a process by which toothed 
whales (e.g., sperm whales) and dolphins emit high-frequency sounds 
from their melon to obtain information about objects (typically prey) 
in the water. Because baleen whales do not echolocate like toothed 
whales and dolphins, there is no concern over impeding such ability. 
Additionally, several species of delphinids and beaked whales have 
stranded off Virginia since 2011; however, there is no evidence that 
the acoustic sources used during HRG surveys contributed to these 
events.
    Regarding available funding, as suggested by another commenter, 
Dominion Energy is responsible for acquiring NMFS-approved PSOs to 
conduct marine mammal monitoring as prescribed in its rule. PSOs 
working on the CVOW-C Project would not be involved in stranding 
response beyond the required reporting measures (i.e., reporting 
sightings of dead or injured marine mammals to the Stranding Response 
Network. The Marine Mammal Health and Stranding Response Program 
(MMHSRP) coordinates emergency responses to sick, injured, distressed, 
or dead seals, sea lions, dolphins, porpoises, and whales. The MMHSRP 
works with volunteer stranding and entanglement networks as well as 
local, tribal, State, and Federal government agencies to coordinate and 
conduct emergency responses to stranded or entangled marine mammals. 
The Prescott Grant Program (https://www.fisheries.noaa.gov/grant/john-h-prescott-marine-mammal-rescue-assistance-grant-program) provides 
funding for members of the national marine mammal stranding network 
through a competitive grant process for (1) recovery and treatment 
(i.e., rehabilitation) of stranded marine mammals; (2) data collection 
from living or dead stranded marine mammals; and (3) facility upgrades, 
operation costs, and staffing needs directly related to the recovery 
and treatment of stranded marine mammals and the collection of data 
from living or dead stranded marine mammals. From 2001 through 2023, 
the Program awarded more than $75.4 million in funding through 893 
competitive grants to Stranding Network members in 26 states, the 
District of Columbia, two territories, and three tribes.
    Comment 32: A commenter has stated that there is a data need for 
information related to vessel density as it relates to changes in 
vessel routing and traffic patterns. The commenter further stated that 
the acquisition of this information would be beneficial when compared 
to species distribution and habitat data. They also stated that this 
data would provide context to any observed changes in rates of vessel 
strikes, fishing gear, entanglements, and impacts on fisheries in terms 
of gear loss and protected species interactions. They also suggested 
that NMFS should require vessels to maintain a specific transit (east 
and northeast of the Lease Area) to avoid nearshore areas.
    Response: NMFS provided information related to the amount and types 
of vessels to be used for CVOW-C and is requiring that that all of 
Dominion Energy's vessels must be equipped with properly installed and 
operational AIS devices and that Dominion Energy must report all 
Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of 
Protected Resources. This will allow for an evaluation of Dominion 
Energy vessel traffic movement. NMFS is not requiring Dominion Energy 
vessels to maintain a specific transit (East and Northeast of the Lease 
Area) to avoid nearshore areas as Dominion Energy must use ports and 
some aspects of work are located in nearshore waters requiring vessel 
use in that area. Therefore, restricting Dominion Energy vessels waters 
outside of the nearshore area (which is undefined by the commenter) is 
not practicable.
    Comment 33: A commenter insisted that NOAA Marine Mammal Health and 
Stranding Program staff be guaranteed site access for response to and 
rescue of stranded animals. The commenter also expressed a desire for 
clarification on the photographs that could be taken during a sighting 
of a stranding, and that specific parameters should be discussed for 
these photos to allow for the appropriate response to be taken.
    Response: NMFS cannot require access be given in all cases for 
stranded animals, as sometimes the carcass never returns to shore or 
strands on protected lands, such as national or state parks, with 
limited access. Given these instances are situational and the 
appropriate actions are determined by trained specialists, we defer to 
their knowledge and expertise instead.
    Regarding the comment on the photographs in the event of a 
stranding or dead animal, NMFS does not see a reason to require very 
specific parameters for these photographs, as all observations would be 
taken in the offshore environment where conditions are typically 
difficult. Additionally, we expect that few, if any, of the crew would 
be trained in proper necropsy technique to know which photographs to 
take or what to look for; instead, we ask the developer and their crew 
(alongside the NMFS-approved PSOs and PAM operators) to collect any 
evidence, information, and photographs they are capable of and have 
access to, instead of providing additional restrictions that may 
complicate the acquisition of important data. If a decision is made to 
retrieve or tow a carcass to shore, we expect that trained stranding 
specialists would be on hand to handle the specifics the commenter is 
referring to. Because of this, we do not see the need to require the 
suggestion by the commenter.
    Comment 34: The commenter has stated that an oil spill contingency 
plan should be created in the event of an oil spill from CVOW-C.
    Response: NMFS agrees with the commenter that this is an important 
consideration for the CVOW-C Project. We direct the commenter to BOEM, 
as an oil spill response plan was included in Appendix Q of the CVOW-C 
COP (https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan) and within the final EIS developed 
for the project (https://www.boem.gov/renewable-energy/state-activities/CVOW-C). Given NMFS is not authorizing incidental take from 
oil spills, we do not analyze this directly in our MMPA ITA and this is 
not discussed further.
    Comment 35: A commenter recommended that Dominion Energy test and 
deploy an all-weather, semi-, or fully-automated whale detection system 
in the mouth of the Chesapeake Bay to reduce the risk of vessel strike.

[[Page 4388]]

    Response: NMFS does not agree with the commenter that Dominion 
Energy must deploy an all-weather, semi-, or fully-automated whale 
detection system in the mouth of the Chesapeake Bay to reduce the risk 
of vessel strike. The commenter did not provide a description of 
additional benefits this type of system would achieve compared to the 
dual-PAM and visual observation requirements NMFS proposed and requires 
for vessel transit. Furthermore, the Woods Hole Oceanographic 
Institution, in collaboration with the CMA CGM Group, have deployed an 
acoustic monitoring buoy approximately 33 miles (53.12 km) off Norfolk, 
Virginia (see the press release at: https://www.whoi.edu/press-room/news-release/whoi-and-cma-cgm-group-deploy-acoustic-monitoring-buoy-near-norfolk-virginia/). While not located in the mouth of the Bay, 
this buoy provides near real-time detection for North Atlantic right 
whale calls, that will be publicly displayed on a website called 
Roborts4Whales (https://robots4whales.whoi.edu/) and shared with 
mariners, including vessel captains. Based on the parameters suggested 
by the commenter along with the publicly available data from existing 
systems, we disagree with the commenter's recommendation.
    Comment 36: The commenter has stated that nowhere in Dominion 
Energy's PSMMP does it describe a need for baseline information on 
species presence, distribution, and behavior. They further compound 
that while short-term impacts from surveys and construction activities 
are likely, long-term impacts from operation would be challenging to 
assess without baseline information. Because of this, the commenter has 
suggested that additional investments into gathering baseline 
information should occur, which would allow for increased monitoring 
during the construction and operation phases and that it should be 
mandated that baseline data is collected for all projects before 
approvals are given.
    Response: NMFS notes to the commenter that this information would 
not be found in Dominion Energy's PSMMP, but information regarding 
species and baseline/known information is found in the ITA application 
itself (see NMFS' web page at https://www.fisheries.noaa.gov/action/incidental-take-authorization-dominion-energy-virginia-construction-coastal-virginia). NMFS also included some information about species 
that have established BIAs or known UMEs in the proposed rule (see 88 
FR 28656, 28672), with updates included where applicable in the final 
rule. We additionally point the commenter to our website (https://www.fisheries.noaa.gov/find-species) and to the SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) for more information.
    The MMPA requires NMFS to evaluate the effects of the specified 
activities based on the best scientific evidence available and to issue 
the requested incidental take authorization if it makes the necessary 
findings. The MMPA does not allow NMFS to delay issuance of the 
requested authorization on the presumption that new information will 
become available in the future. If new information becomes available in 
the future, NMFS may modify the mitigation and monitoring measures in 
an LOA issued under these regulations through the adaptive management 
provisions. Furthermore, NMFS is required to withdraw or suspend an LOA 
if it determines that the authorized incidental take may be having more 
than a negligible impact on a species or stock. This determination is 
made following notice and opportunity for public comment, unless and 
emergency exists that poses a significant risk to the well-being of the 
marine mammal species or stock.
    NMFS has duly considered the best scientific evidence available in 
its effects analysis. The Potential Effects of Underwater Sound on 
Marine Mammals section of the proposed rule included a broad overview 
of the potential impacts on marine mammals from anthropogenic noise and 
provided summaries of several studies regarding the impacts of noise 
from several different types of sources (e.g., airguns, Navy sonar, 
vessels) on large whales, including North Atlantic right whales. 
Offshore wind farm construction generates noise that is similar, or, in 
the case of vessel noise, identical, to noise sources included in these 
studies (e.g., impact pile driving and airguns both produce impulsive, 
broadband sounds where the majority of energy is concentrated in low 
frequency ranges), and the breadth of the data from these studies helps 
us predict the impacts from wind activities. In addition, as described 
in the proposed rule, it is general scientific consensus that 
behavioral responses to sound are highly variable and context-specific 
and are impacted by multiple factors including, but not limited to, 
behavioral state, proximity to the source, and the nature and novelty 
of the sound. Overall, the ecological assessments from offshore wind 
farm development in Europe and peer-reviewed literature on the impacts 
of noise on marine mammals both in the U.S. and worldwide provides the 
information necessary to conduct an adequate analysis of the impacts of 
offshore wind construction and operation on marine mammals in the 
Atlantic Outer Continental Shelf. NMFS acknowledges that studies in 
Europe typically focus on smaller porpoise and pinniped species, as 
those are more prevalent in the North Sea and other areas where 
offshore wind farms have been constructed. The commenter did not 
provide additional scientific information for NMFS to consider.
    Comment 37: A commenter asserts that the ITR and LOA process lacks 
transparency and there are no resources easily accessible to the public 
to understand what authorizations are required for each of these 
activities (pre-construction surveys, construction, operations, 
monitoring surveys, etc.). They requested NMFS improve the transparency 
of this process and move away from a ``segmented phase-by-phase and 
project-by-project approach'' for authorization. In addition, they 
requested NMFS provide a comprehensive list/table of all takes by Level 
A harassment and Level B harassment under currently approved and 
requested authorizations per project.
    Response: The MMPA, and its implementing regulations allow, upon 
request, the incidental take of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographic region. NMFS authorizes the 
requested incidental take of marine mammals if it finds that the taking 
would be of small numbers, have no more than a ``negligible impact' on 
the marine mammal species or stock, and not have an ``unmitigable 
adverse impact'' on the availability of the species or stock for 
subsistence use. NMFS refers the public to its website for more 
information on the marine mammal incidental take authorization process 
and timelines (https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act).
    NMFS emphasizes that an IHA or rulemaking/LOA does not authorize 
the activity itself but authorizes the take of marine mammals 
incidental to the ``specified activity'' for which incidental take 
coverage is being sought. In this case, NMFS is responding to Dominion 
Energy's request to incidentally take marine mammals in the course of 
constructing the CVOW-C Project. The authorization of the specified 
activities is not within NMFS' jurisdiction; instead, this falls under 
BOEM's

[[Page 4389]]

purview and NMFS refers the public to BOEM's website: https://www.boem.gov/renewable-energy. Additionally, for the commenter's 
awareness, NMFS maintains a list of all proposed and issued 
authorizations for renewable energy activities, including the 
requested, proposed, and/or authorized take is available on the agency 
website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    Lastly, regarding the commenter's concern about assessing all 
offshore wind projects cumulatively, NMFS will not repeat the response 
but instead refers the commenter to Comment 28, where we explain why 
each project is considered discrete and as its own separate action.
    Comment 38: A commenter stated that the presence of wind turbines 
will impact NMFS' ability to conduct low-altitude (1,000 m) marine 
mammal assessment aerial surveys, thus impacting NMFS' ability to 
continue using current methods to fulfill its mission of precisely and 
accurately assessing and managing protected species.
    Response: NMFS and BOEM have collaborated to establish the Federal 
Survey Mitigation Strategy for the Northeast U.S. Region (Hare et al., 
2022). This interagency effort is intended to guide the development and 
implementation of a program to mitigate impacts of wind energy 
development on fisheries surveys. For more information on this effort, 
please see https://repository.library.noaa.gov/view/noaa/47925.
    Comment 39: Expressing concerns regarding enforcement, commenters 
expressed interest in understanding the outcome if the number of actual 
takes exceeds the number authorized during construction of an offshore 
wind project (i.e., if the project would be stopped mid-construction or 
operation), and how offshore wind developers will be held accountable 
for impacts to protected species such that impacts are not 
inadvertently assigned to fishermen, should they occur.
    Another member of the public recommended that if a marine mammal is 
killed during the specified construction activities for CVOW-C, then 
Dominion Energy should ``be fined a considerable sum.''
    Response: NMFS carefully reviews models and take estimate 
methodology to authorize a number of takes, by species and manner of 
take, which is a likely outcome of the project. There are several 
conservative assumptions built into the models to ensure the number of 
takes authorized is sufficient based on the description of the project. 
Dominion Energy would be required to submit frequent reports which 
would identify the number of takes applied to the project.
    In the unexpected event that Dominion Energy exceeds the number of 
takes authorized for a given species, the MMPA and its implementing 
regulations state that NMFS shall withdraw or suspend the LOA issued 
under these regulations, after notice and opportunity for public 
comment, if it finds the methods of taking or the mitigation, 
monitoring, or reporting measures are not being substantially complied 
with, or the taking allowed is having, or may have, more than a 
negligible impact on the species or stock concerned (16 U.S.C. 
1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with 
the requirements of the LOA may result in civil monetary penalties and 
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 
CFR 216.206(g)).
    Moreover, as noted previously, fishing impacts (and NMFS' 
assessment of them) generally center on entanglement in fishing gear, 
which is a very acute, visible, and severe impact (mortality or serious 
injury). In contrast, the impacts incidental to the specified 
activities are primarily acoustic in nature and limited to Level A 
harassment and Level B harassment, there is no anticipated or 
authorized serious injury or mortality that the fishing industry could 
theoretically be held accountable for. Any take resulting from the 
specified activities would not be associated with take authorizations 
related to commercial fish stocks. The impacts of commercial fisheries 
on marine mammals and incidental take for said fishing activities are 
managed separately from those of non-commercial fishing activities such 
as offshore wind site characterization surveys, under MMPA section 118.
    Comment 40: A commenter suggested that NMFS require Dominion Energy 
to utilize direct-drive turbines instead of gearboxes.
    Response: Dominion Energy has indicated they intend to use direct 
drive turbines for the CVOW-C Project, based on Section 3.3.1.1 of 
their COP, specifically the Siemens Gamesa SG 14-222 DD WTG model (see 
https://www.boem.gov/renewable-energy/state-activities/cvow-construction-and-operations-plan). Furthermore, as already described 
above in Comment 37, the applicant is the one to determine the project 
(i.e., the Proposed Action), not NMFS.
    Comment 41: A commenter suggested various mitigation and monitoring 
measures in the event that gravity-based and/or suction-bucket 
foundations are used instead of impact/vibratory-driven foundations 
(i.e., clearance and shutdown zones at distances that they assert would 
eliminate all take by Level A harassment of North Atlantic right whales 
and other large whales; visual and acoustic monitoring for large 
whales; shutdown for large whale visual observations or acoustic 
detections; restart of construction after shutdown; use of near-real 
time PAM for vessel(s); alternative monitoring technologies for 
monitoring (infrared drones, hydrophones); mandatory vessel speed 
restrictions; and required reporting).
    Response: NMFS appreciates the suggestions by the commenter and 
refers to Comment 16 above where we discuss gravity-based and other 
foundation types for the CVOW-C Project. However, Dominion Energy did 
not include the potential to use gravity-based and/or suction-bucket 
foundations in their MMPA application; therefore, NMFS has not 
analyzed, authorized incidental take, or promulgated mitigation, 
monitoring, or reporting measures for gravity-based or suction-bucket 
foundations.
    Comment 42: Commenters expressed concern that whales would be 
displaced from the Project Area into shipping lanes or areas of higher 
vessel traffic, which could result in higher risks of vessel strike and 
that NMFS has not accounted for this impact in its analysis.
    Response: NMFS acknowledges that whales may temporarily avoid the 
area where the specified activities occur. However, NMFS does not 
anticipate that whales will be displaced in a manner that would result 
in a higher risk of vessel strike, and the commenter does not provide 
evidence that either of these effects should be a reasonably 
anticipated outcome of the specified activity. Vessel traffic is 
concentrated closer to shore as vessels leave and return to ports such 
as the Port of Virginia, most notably within designated shipping lanes 
and as they enter the Chesapeake Bay. The density of vessel traffic 
dissipates as one moves offshore.
    NMFS disagrees with the commenter that the risk of vessel strike 
was not considered in the analysis. NMFS takes the risk of vessel 
strike seriously and while we acknowledge that vessel strikes can 
result in injury or mortality, we have analyzed and determined that the 
potential for vessel strike is so low as to be discountable. Dominion 
Energy must abide by a suite of vessel strike avoidance measures that 
include, for

[[Page 4390]]

example, seasonal and dynamic vessel speed restrictions to 10 kn (18.5 
km/hour) or less; required use of dedicated observers on all transiting 
vessels; maintaining awareness of North Atlantic right whale presence 
through monitoring of North Atlantic right whale sighting systems. 
Further, any observations of a North Atlantic right whale by project-
related personnel would be reported to sighting networks, alerting 
other mariners to North Atlantic right whale presence. Both Dominion 
Energy and other mariners are required to abide by all existing 
approach and speed regulations designed to minimize the risk of vessel 
strike. Notably, Dominion Energy is restricted from installing 
foundations during the time of year when North Atlantic right whales 
are expected to be present in greatest abundance (November 1st through 
April 30th). Therefore, the potential for this activity to result in 
harassment is very small, as indicated by the low amount of take 
authorized. Further, NMFS has determined that any harassment from any 
specified activity is anticipated to, at most, result in some avoidance 
that would be limited spatially and temporally. It is unlikely that any 
impacts from the project would increase the risk of vessel strike from 
non-Dominion Energy vessels. The commenter has presented no information 
supporting the speculation that whales would be displaced from the 
Project Area into shipping lanes or areas of higher vessel traffic in a 
manner that would be expected to result in higher risks of vessel 
strike.
    Comment 43: Commenters stated that it is ``against the law to 
knowingly interfere with an endangered species and depletion of an 
entire population,'' and they cited the Endangered Species Act (ESA) in 
support of this claim. They further state that the CVOW-C Project would 
``disrupt'' the migration path of the North Atlantic right whale and, 
therefore, result in the extinction of this species.
    Response: Under Section 7(a)(2) of the ESA, Federal agencies are 
required to consult with NMFS or the U.S. Fish and Wildlife Service, as 
appropriate, to ensure that the actions they fund, permit, authorize, 
or otherwise carry out will not jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of designated critical habitats. For the CVOW-C Project, our office 
(i.e., the Office of Protected Resources) requested initiation of a 
Section 7 consultation for ESA-listed species with the NMFS Greater 
Atlantic Regional Fisheries Office on April 4, 2023. A Biological 
Opinion was completed on September 19, 2023 (found here: https://repository.library.noaa.gov/view/noaa/55495), which concluded that the 
promulgation of the rule and issuance of LOAs thereunder is not likely 
to jeopardize the continued existence of threatened and endangered 
species under NMFS' jurisdiction and is not likely to result in the 
destruction or adverse modification of designated or proposed critical 
habitat. Because of this, NMFS' action of finalizing the rulemaking and 
issuing LOAs for the CVOW-C Project is consistent with the ESA.
    Furthermore, NMFS disagrees that the CVOW-C Project would 
``completely disrupt and destroy the North Atlantic Right Whale 
population and migration path,'' as suggested by the commenters. NMFS 
is aware of no evidence to support this claim, nor did the commenters 
provide any. In total, the CVOW-C Project Area consists of 
approximately 456.5 km\2\ of the entire 269,448 km\2\ migratory BIA. No 
take by injury, serious injury, or mortality is authorized for the 
species. NMFS emphasizes that the authorized incidental take of North 
Atlantic right whales is limited to Level B harassment (i.e., 
behavioral disturbance). As described in the proposed rule and this 
final rule (see Negligible Impact Analysis and Determination section), 
NMFS has determined that the Level B harassment of North Atlantic right 
will not result in impacts to the population through effects on annual 
rates or recruitment or survival.

Changes From the Proposed to Final Rule

    Since the publication of the proposed rule in the Federal Register 
(88 FR 28656, May 4, 2023), NMFS has made changes, where appropriate, 
that are reflected in the final regulatory text and preamble text of 
this final rule. These changes are briefly identified below, with more 
information included in the indicated sections of the preamble to this 
final rule.

Changes to Information Provided in the Preamble

    The information found in the preamble of the proposed rule was 
based on the best available information at the time of publication. 
Since publication of the proposed rule, new information has become 
available and has been incorporated into this final rule, as discussed 
below.
    The following changes are reflected in the Description of Marine 
Mammals in the Specified Geographic Region section of the preamble to 
this final rule:
    Given the release of NMFS' final 2022 SARs (Hayes et al., 2023), we 
have updated the North Atlantic right whale total mortality/serious 
injury (M/SI) amount from 8.1 to 31.2. This increase is due to the 
inclusion of undetected annual M/SI in the total annual serious injury/
mortality. We have also updated the North Atlantic right whale 
abundance estimate based on Linden (2023).
    Given the availability of new information, we have made updates to 
the UME summaries for multiple species (i.e., North Atlantic right 
whale, humpback whale, minke whale).
    The following changes are reflected in the Mitigation section of 
the preamble to this final rule:
    We have added a general requirement that noise levels must not 
exceed those modeled, assuming 10 dB attenuation.
    Because Dominion Energy has informed NMFS that the soft-start 
procedure in the proposed rule raises engineering feasibility and 
practicability concerns, we have removed the specific soft-start 
procedure identified in the proposed rule (i.e., ``four to six strikes 
per minute at 10 to 20 percent of the maximum hammer energy, for a 
minimum of 20 minutes''). This final rule still requires a soft-start 
for each WTG and OSS impact pile driving event.
    In Tables 25 and 26, we have added the requirement for clearance 
and shutdown of pile driving based on PAM detections at 10 km (6.2 mi) 
that applies to all species except North Atlantic right whales, which 
would still require shutdown at any distance upon a detection.
    We have added a requirement in the Reporting section for Dominion 
Energy to report operational sound levels from all installed piles, in 
alignment with a requirement from the Biological Opinion.

Changes in the Regulatory Text

    We have made the following changes to the regulatory text, which 
are reflected, as appropriate, throughout this final rule and 
described, as appropriate, in the preamble.
    For clarity and consistency, we revised two paragraphs in Sec.  
217.290 Specified activity and specified geographical region of the 
regulatory text to fully describe the specified activity and specified 
geographical region.
    The following changes are reflected in Sec.  217.294 Mitigation 
Requirements and the associated Mitigation section of the preamble to 
this final rule:
    For clarity and consistency, we have reorganized and revised, as 
applicable,

[[Page 4391]]

the paragraphs in Sec.  217.294 Mitigation requirements.
    We have clarified the requirement that Dominion Energy deploy at 
least two functional noise abatement systems requires at least a double 
bubble curtain.
    As described above, we updated the WTG and OSS impact pile driving 
soft-start procedural requirements.
    The following changes are reflected in Sec.  217.295 Monitoring and 
Reporting Requirements and the associated Monitoring and Reporting 
section of the preamble of this final rule:
    For clarity and consistency, we have reorganized and revised, as 
applicable, the paragraphs in Sec.  217.295 Monitoring and reporting 
requirements.
    We have updated the process for obtaining NMFS approval for PSO and 
PAM operators to be similar to requirements typically included for 
seismic (e.g., airgun) surveys and have clarified education, training, 
and experience necessary to obtain NMFS' approval.
    We have added a requirement that the Lead PSO must have a minimum 
of 90 days of at-sea experience and must have obtained this experience 
within the last 18 months.
    We have added a requirement to have at least three PSOs on pile 
driving vessels rather than two PSOs, as was originally described in 
the proposed rule.
    We have added requirements that SFV must be conducted on every pile 
until measured noise levels are at or below the modeled noise levels, 
assuming 10 dB, for at least three consecutive monopiles.
    We have removed the requirement to include HRG survey activities in 
the weekly report. This requirement is inconsistent with previously 
promulgated and issued incidental take authorizations for HRG survey 
activities and a rationale was not included in the preamble of proposed 
rule to support this change. Consistent with previous authorizations, 
HRG survey activities are to be included in the annual report (see 
Sec.  217.295(g)(7)).
    We have removed the requirements for reviewing data on an annual 
and biennial basis for adaptive management and instead will make 
adaptive management decisions as new information warrants it.

Description of Marine Mammals in the Specified Geographic Region

    As noted in the Changes From the Proposed to Final Rule section, 
updates have been made to the UME summaries of multiple species. These 
changes are described in detail in the sections below. We have also 
included new data on North Atlantic right whale abundance information 
(Linden, 2023) and updated the annual M/SI value presented in Table 2, 
based upon updates found in the final SARs (see Hayes et al., 2023). 
Otherwise, this section has not changed since the publication of the 
proposed rule in the Federal Register (88 FR 28656, May 4, 2023).
    Several marine mammal species occur within the specified geographic 
region. Sections 3 and 4 of Dominion Energy's ITA application summarize 
available information regarding status and trends, distribution and 
habitat preferences, and behavior and life history of the potentially 
affected species (Dominion Energy, 2023). NMFS fully considered all of 
this information, and we refer the reader to these descriptions in the 
application, adopted here by reference, instead of reprinting the 
information. Additional information regarding population trends and 
threats may be found in NMFS' SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is authorized 
under this final rule and summarizes information related to the species 
or stock, including regulatory status under the MMPA, ESA, and PBR, 
where known. PBR is defined as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population (as described in NMFS' SARs; (16 U.S.C. 
1362(20))). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock, 
or the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic and Gulf of Mexico SARs. Values presented in Table 
2 are the most recent available data at the time of publication which 
can be found in NMFS' 2022 final SARs (Hayes et al., 2023), available 
online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

                            Table 2--Marine Mammal Species \e\ That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \a\          abundance survey) \b\               SI \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             338 (0, 332, 2020);           0.7   \i\ 31.2
                                                                                                             356 (346-363, 2022)
                                                                                                             \j\.
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..........  -, -, Y             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).
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Family Kogiidae:
    Pygmy sperm whale g h...........  Kogia breviceps........  Western North Atlantic.  -, -, N             7,750 (0.38; 5,689;            46          0
                                                                                                             2016).

[[Page 4392]]

 
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).
                                                               Southern Migratory       -, -, Y             3,751 (0.6; 185; See           23     0-18.3
                                                                Coastal.                                     SAR).
    Clymene dolphin \g\.............  Stenella clymene.......  Western North Atlantic.  -, -, N             4,237 (1.03; 2,071;            21          0
                                                                                                             2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             172,974 (0.21;              1,452        390
                                                                                                             145,216; 2016).
    False killer whale \g\..........  Pseudorca crassidens...  Western North Atlantic.  -, -, N             1,791 (0.56; 1,154;            12          0
                                                                                                             2016).
    Melon-headed whale \g\..........  Peponocephala electra..  Western North Atlantic.  -, -, N             UNK (UNK; UNK; 2016)..        UNK          0
    Long-finned pilot whale \f\.....  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3; 30,627;          306         29
                                                                                                             2016).
    Short-finned pilot whale \f\....  Globicephala             Western North Atlantic.  -, -, Y             28,924 (0.24, 23,637,         236        136
                                       macrorhynchus.                                                        See SAR).
    Pantropical spotted dolphin.....  Stenella attenuata.....  Western North Atlantic.  -, D, N             6,593 (0.52, 4,367,            44          0
                                                                                                             See SAR).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             35,215 (0.19; 30,051;         301         34
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             95,543 (0.31; 74,034;         851         16
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \d\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,300 (0.22; 22,785;       1,389      4,453
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR, or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\b\ NMFS' marine mammal stock assessment reports can be found online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\c\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\d\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,431. The annual M/SI value given is for the total stock.
\e\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2023)).
\f\ Although both species are described here, the authorized take for both short-finned and long-finned pilot whales has been summarized into a single
  group (pilot whales spp.).
\g\ While these species were not originally included in Dominion Energy's request, given recorded sightings/detections of these species during previous
  Dominion Energy IHAs in the same general area, NMFS included Level B harassment of these species both in the proposed rule and this final rulemaking.
\h\ Estimate is for Kogia spp. only.
\i\ In the proposed rule (88 FR 28656, May 4, 2023), the best available science (i.e., the NMFS draft 2022 SARs) included a North Atlantic right whale M/
  SI value of 8.1 which accounted for detected mortality/serious injury. In the final 2022 SAR, released in June 2023, the total annual average observed
  North Atlantic right whale mortality was updated from 8.1 to 31.2. Numbers presented in this table (31.2 total mortality (22 of which are attributed
  to fishery-induced mortality) are 2015-2019 estimated annual means, accounting for both detected and undetected mortality and serious injury (Hayes et
  al., 2023).
\j\ The current SAR includes an estimated population (Nbest 338) based on sighting history through November 2020 (Hayes et al., 2023). In October 2023,
  NMFS released a technical report identifying that, based on sighting data through December 2022 (versus the SAR which includes sighting data through
  November 2020), the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible
  interval ranging from 346 to 363 (Linden, 2023).

    A detailed description of the species likely to be affected by the 
Project, including brief introductions to the species and relevant 
stocks as well as available information regarding population trends and 
threats, and information regarding local occurrence, were provided in 
the Federal Register notice for the proposed rule (88 FR 28656, May 4, 
2023). Since that time, a new SAR (Hayes et al., 2023) has become 
available for the North Atlantic right whale. Annual M/SI increased 
from 8.1 to 31.2. This large increase in annual serious injury/
mortality is a result of NMFS including undetected annual M/SI in the 
total annual M/SI. Additionally, NMFS released a technical report, 
which includes a recently released population estimate of 356 (Linden, 
2023). We are not aware of any additional changes in the status of the 
species and stocks listed in Table 2; therefore, detailed descriptions 
are not provided here. Please refer to the proposed rule Federal 
Register notice for these descriptions (88 FR 28656, May 4, 2023). 
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

North Atlantic Right Whale

    In June 2023, NMFS released its final 2022 SARs, which updated the 
annual M/SI value from 8.1 to 31.2 due to the addition of estimated 
undetected mortality and serious injury, as described above, which had 
not been previously included in the SAR. The

[[Page 4393]]

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 December 19, 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=51) with 
sublethal injury or illness (called ``morbidity'') bringing the total 
number of whales in the UME to 121. More information about the North 
Atlantic right whale UME is available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.

Humpback Whale

    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. This event was 
declared a UME in April 2017. Partial or full necropsy examinations 
have been conducted on approximately half of the 212 known cases (as of 
December 19, 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 Virginia, has been elevated. In some 
cases, the cause of death is not yet known. In others, vessel strike 
has been deemed the cause of death. As the humpback whale population 
has grown, they are seen more often in the Mid-Atlantic. These whales 
may be following their prey (small fish) which are reportedly close to 
shore in the winter. These prey also attract fish that are of interest 
to recreational and commercial fishermen. This increases the number of 
boats and fishing gear in these areas. More whales in the vicinity of 
areas traveled by boats of all sizes increases the risk of vessel 
strikes. Vessel strikes and entanglement in fishing gear are the 
greatest human threats to large whales.

Minke Whale

    Since January 2017, a UME has been declared based on elevated minke 
whale mortalities detected along the Atlantic coast from Maine through 
South Carolina. As of December 19, 2023, a total of 160 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 677.6 km (421 mi) apart, by water (from the most 
northern point of Virginia 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 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

[[Page 4394]]

associated hearing ranges are provided in Table 3.

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

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013). For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.
    NMFS notes that in 2019a, Southall et al. recommended new names for 
hearing groups that are widely recognized. However, this new hearing 
group classification does not change the weighting functions or 
acoustic thresholds (i.e., the weighting functions and thresholds in 
Southall et al. (2019a) are identical to NMFS 2018 Revised Technical 
Guidance). When NMFS updates our Technical Guidance, we will be 
adopting the updated Southall et al. (2019a) hearing group 
classification.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the Project's specified 
activities have the potential to result in the harassment of marine 
mammals in the specified geographic region. The proposed rule (88 FR 
28656, May 4, 2023) included a discussion of the effects of 
anthropogenic noise on marine mammals and the potential effects of 
underwater noise from Dominion Energy's project activities on marine 
mammals and their habitat. That information and analysis is adopted by 
reference into this final rule and is not repeated here; please refer 
to the notice of the proposed rule (88 FR 28656, May 4, 2023).
    Since publication of the proposed rule, new scientific information 
has become available that provides additional insight into the sound 
fields produced by turbine operation. Recently, Holme et al. (2023) 
stated that Tougaard et al. (2020) and St[ouml]ber and Thomsen (2021) 
extrapolated levels for larger turbines and should be interpreted with 
caution since both studies relied on data from smaller turbines (0.45 
to 6.15 MW) collected over a variety of environmental conditions. They 
demonstrated that the model presented in Tougaard et al. (2020) tends 
to overestimate levels (up to approximately 8 dB) measured to those in 
the field, especially with measurements closer to the turbine for 
larger turbines. Holme et al. (2023) measured operational noise from 
larger turbines (6.3 and 8.3 MW) associated with three wind farms in 
Europe and found no relationship between turbine activity (power 
production, which is proportional to the blade's revolutions per 
minute) and noise level, although it was noted that this missing 
relationship may have been masked by the area's relatively high ambient 
noise sound levels. Sound levels (root-mean-square (RMS)) of a 6.3 MW 
direct-drive turbine were measured to be 117.3 dB at a distance of 70 
meters. However, measurements from 8.3 MW turbines were inconclusive as 
turbine noise was deemed to have been largely masked by ambient noise.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this rulemaking, which will inform both NMFS' 
consideration of ``small numbers'' and the negligible impact 
determination.
    Authorized takes would be primarily by Level B harassment, as use 
of the acoustic sources (i.e., impact and vibratory pile driving and 
site characterization surveys) have the potential to result in 
disruption of marine mammal behavioral patterns due to exposure to 
elevated noise levels. Impacts such as masking and TTS can contribute 
to behavioral disturbances. There is also some potential for auditory 
injury (Level A harassment) to occur in select marine mammal species 
incidental to the specified activities (i.e., WTG and OSS foundation 
pile driving). For this action, this potential for PTS is limited to 
mysticetes, high-frequency cetaceans, and phocids due to their hearing 
sensitivities and the nature of the activities. The required mitigation 
and monitoring measures are expected to minimize the severity and 
magnitude of the taking to the extent practicable. As described 
previously, no serious injury or mortality is anticipated or authorized 
for this project. Below we describe how the take numbers were 
estimated.
    Generally speaking, we estimate take by considering: (1) acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and (4) and 
the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the authorized take 
estimates.

Marine Mammal Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).

[[Page 4395]]

A summary of all NMFS' thresholds can be found at (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance).
Level B Harassment
    Though significantly driven by received level, the onset of 
behavioral disturbance from anthropogenic noise exposure is also 
informed to varying degrees by other factors related to the source or 
exposure context (e.g., frequency, predictability, duty cycle, duration 
of the exposure, signal-to-noise ratio, distance to the source), the 
environment (e.g., other noises in the area, ambient noise), and the 
receiving animals (e.g., 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 root-mean-square sound pressure levels (RMS SPL) of 120 dB 
(referenced to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., 
vibratory pile-driving, drilling) and above the received RMS SPL 160 dB 
re: 1 [mu]Pa for non-explosive impulsive (e.g., seismic airguns) or 
intermittent (e.g., scientific sonar) sources. Generally speaking, 
Level B harassment take estimates based on these behavioral harassment 
thresholds are expected to include any likely takes by TTS as, in most 
cases, the likelihood of TTS occurs at distances from the source less 
than those at which behavioral harassment is likely. TTS of a 
sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (conspecific communication, predators, prey) may 
result in changes in behavior patterns that would not otherwise occur.
    Dominion Energy's construction activities include the use of 
continuous (i.e., vibratory pile driving) and intermittent (i.e., 
impact pile driving, HRG acoustic sources) sources, and therefore, the 
120 and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
Level A Harassment
    NMFS' Technical Guidance for Assessing the Effects of Anthropogenic 
Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) 
identifies dual criteria to assess auditory injury (Level A harassment) 
to five different marine mammal groups (based on hearing sensitivity) 
as a result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). As dual metrics, NMFS considers onset of 
PTS (Level A harassment) to have occurred when either one of the two 
metrics is exceeded (i.e., metric resulting in the largest isopleth). 
Dominion Energy's planned activities include the use of non-impulsive 
sources.
    These thresholds are provided in Table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                                Table 4--Onset of Permanent Threshold Shift (PTS)
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lp,0-pk,flat: 219   Cell 2: LE,p, LF,24h: 199 dB.
                                          dB; LE,p, LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lp,0-pk,flat: 230   Cell 4: LE,p, MF,24h: 198 dB.
                                          dB; LE,p, MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lp,0-pk,flat: 202   Cell 4: LE,p, HF,24h: 198 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 (ISO) standards (ISO, 2017). The subscript
  ``flat'' is 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.

    Dominion Energy would not conduct high-order detonation of 
unexploded ordnances or munitions and explosives of concern (UXOs/MECs) 
as part of the Project. As Dominion Energy has not requested, and NMFS 
has not authorized, any take related to the detonation of UXOs/MECs, 
the acoustic (i.e., PTS onset and TTS onset for underwater explosives) 
and the pressure thresholds (i.e., lung and gastrointestinal tract 
injuries) are not discussed or included in this action.

Acoustic and Exposure Modeling Methods

    As described above, underwater noise associated with the 
construction of offshore components of CVOW-C would predominantly 
result from installation of the WTG monopile and the OSS jacket 
foundations using a dual-vibratory and impact pile driving approach 
while noise from cable landfall construction activities (i.e., 
temporary cofferdam and temporary goal post installation and removal) 
will primarily result from either impact pile driving (for the 
temporary goal posts) or vibratory pile driving (for the temporary 
cofferdams). Acoustic modeling was performed for some activities for 
which there was a pile driving component, including WTG and OSS 
foundation installation and temporary cofferdam installation and 
removal. The basic modeling approach is to characterize the sounds 
produced by the source, determine how the sounds propagate within the 
surrounding water column,

[[Page 4396]]

and then estimate species-specific exposure probability by considering 
the range- and depth-dependent sound fields in relation to animal 
movement in simulated representative construction scenarios.
    Animat exposure modeling was only performed for foundation 
installation. For other activities planned by Dominion Energy (i.e., 
temporary cofferdam installation and removal, temporary goal post 
installation and removal, HRG surveys), take was estimated using a 
``static'' approach for representing animal distribution and density, 
as detailed later in the Static Take Estimate Method section.
    Dominion Energy employed Tetra Tech, Inc. (Tetra Tech) to conduct 
the acoustic modeling and Marine Acoustics, Inc. (MAI) for the animal 
movement modeling to better understand both the sound fields produced 
during foundation and cofferdam installation and to estimate any 
potential exposures (see the Acoustic Modeling report in Appendix A of 
Dominion Energy's ITA application). Dominion Energy also collaborated 
with the Institute for Technical and Applied Physics (iTAP) for 
information related to vibratory pile driving of foundation piles. 
Tetra Tech also performed the acoustic analysis related to temporary 
cofferdam installation and removal via vibratory pile driving. Acoustic 
source modeling of vibratory pile driving related to cofferdam 
installation and removal was incorporated into the static method to 
yield estimated and requested take values. Tetra Tech applied the 
source modeling methods from the CVOW Pilot Project with modifications 
based on newly available data and the additional availability of 
research studies. The approach is summarized here; more detail can be 
found in the Acoustic Modeling report in Appendix A of Dominion 
Energy's ITA application.
Acoustic Source Modeling
    Based on a literature review of pile driving measurement reports, 
theoretical modeling reports, and peer-reviewed research papers (see 
the references in Attachment Z-2 in Appendix A of Dominion Energy's COP 
(2023)), Tetra Tech developed an empirical modeling approach for 
calculating the acoustic source of impact pile driving foundation 
installation activities for the CVOW-C Project. A collaboration between 
Dominion Energy and iTAP assessed the estimated acoustic source levels 
produced from vibratory pile driving of foundation piles based on 
empirical data collected and assessed from the CVOW Pilot Project and 
other European offshore wind farms. These two modeling approaches are 
discussed separately here.

Foundation Impact Pile Driving Source Level Empirical Model

    An empirical model developed by Tetra Tech was used to determine 
the peak sound level (Lpk) and sound exposure level (SEL) at 
the source for the foundation pile driving scenarios. To feed into the 
model, Tetra Tech obtained sound levels from relevant scenarios for a 
variety of pile diameter sizes, driven with hammers of varying 
energies, and collected or analyzed at different ranges from the 
impacted pile. This empirical model was implemented by using the 
following steps:
    1. Normalizing the received sound pressure levels to a common 
received range, assuming a transmission loss of 15LogR (i.e., practical 
spreading), where R is the distance ratio;
    2. Scaling the source levels to an energy of 4,000 kJ, assuming a 
relationship between the hammer energy and radiated sound as 10 times 
the base 10 logarithm of the ratio of hammer energy to the referenced 
hammer energy (as in the scaling laws outlined in von Pein et al., 
2022); and
    3. Calculating a linear regression of the adjusted source levels 
(which has been normalized for range and hammer energy) as a function 
of the base 10 logarithm of the pile diameters, which is then used to 
predict the broadband SEL and peak sound levels for the planned energy 
and diameter.
    The above empirical model was used in determining Lpk 
and SEL, however, a similar technique for sound pressure level (SPL) 
was not possible due to a lack of data. For this reason, SPL was 
derived from SEL using the average pulse duration of measurements used 
in the empirical model. One-third octave band levels from 12.5 Hz to 20 
kHz were derived from surrogate spectra taken from published data for 
piles of similar diameters and adjusted based on the empirical model 
above. For the Lpk underwater acoustic modeling scenario 
(evaluating a single pile-driving strike), the pile driving sound 
source was represented as a point source at a mid-water depth. To 
estimate SEL, the monopile and pin pile driving scenarios were modeled 
using a vertical array of point sources spaced at 1 m intervals and 
assuming a specific number of strikes for each type of pile (see 
Formula 2 in Attachment Z-1 of Appendix A in the application). The SPL 
scenario was set up in an identical manner to the SEL scenario, with 
the primary difference being that the model did not incorporate the 
total number of pile driving strikes needed for each of the monopile 
and pin pile scenarios within a 24-hour period. Instead, only a single 
pile driving strike was incorporated.
    Information on the impact pile driving scenarios and source levels 
for WTGs, OSSs, and goal posts can be found in Table Z-7 of Appendix A 
of Dominion Energy's ITA application. These impact modeling scenarios 
assumed no sound attenuation. For all WTG monopile modeling (i.e., 
Scenarios 1-3 including standard driving and hard-to-drive installation 
approaches), a single strike SEL source level of 226 was assumed. For 
OSS modeling using pin piles, a single strike SEL source level of 214 
dB was assumed. For goal post installation, a single strike SEL source 
level of 183 dB was assumed (California Department of Transportation 
(CALTRANS), 2015).

Foundation Vibratory Pile Driving Source Level Empirical Model

    Limited empirical data exists for the installation of large 
foundation piles by vibratory driving, with most being measured by iTAP 
(see Remmers and Bellmann (2021) in Appendix A of the application 
(Attachment Z-3)). Current datasets contain a variety of different 
information, including ranges of water depths from several meters to 
depths of 40 m, different sediment types, and measured receiver 
distances from several meters away from the source up to 750 m away.
    To predict the expected underwater noise levels during vibratory 
pile driving of 2.4 m pin piles for the OSS and 9.5 m monopiles, iTAP 
used the limited empirical data from several existing offshore wind 
farms from different pile diameters. All data were normalized to a 
distance from the source of 750 m assuming a propagation loss of 
15LogR. Given this normalization, uncertainties of <3 dB were expected. 
The data were plotted as a function of the pile diameter and then fit 
with a statistical regression curve (see the figure in Remmers and 
Bellmann (2021) Attachment Z-3 in Appendix A of Dominion Energy's 
application). Using the resulting regression, iTAP predicted noise 
levels of 151 dB SPL for 2.4 m pin piles and 159 dB SPL for 9.5 m 
monopiles (the maximum size piles Dominion Energy plans to install), at 
a range of 750 m from the driven piles (Remmers and Bellmann (2021)). 
Based on possible influences of friction between the head of the 
vibratory hammer and the top of the piles, iTAP states that these 
results at 750 m from the piles may be overestimating the source level 
for vibratory pile driving.

[[Page 4397]]

    For vibratory installation of cofferdams, adjusted one-third-octave 
band source levels (with a broadband source level of 195 dB SEL) were 
obtained from similar offshore construction projects and then adjusted 
to account for the estimated force needed to drive cofferdam sheet 
piles (see Schultz-von Glahn et al., 2006).
Acoustic Propagation Modeling
    To predict acoustic levels at range during foundation installation 
(impact and vibratory pile driving) and temporary cofferdam 
installation and removal (vibratory pile driving), Tetra Tech used 
sound propagation models, discussed below. For the installation and 
removal of goal posts and HRG surveys, Dominion Energy assumed a 
practical spreading loss rate (15logR). Below we describe the more 
sophisticated sound propagation modeling methodology.
    Tetra Tech utilized a software called dBSea, which was developed by 
Marshall Day Acoustics (https://www.dbsea.co.uk/), to predict the 
underwater noise in similar environments to what might be encountered 
in the CVOW-C Project Area. Per Attachment Z-1 of the COP, Tetra Tech 
used different ``solvers'' (i.e., algorithms) for the low and high-
frequency ranges, including:
     dBSeaPE (Parabolic Equation Method): The dBSeaPE solver 
makes use of the range-dependent acoustic model (RAM) parabolic 
equation method, a versatile and robust method of marching the sound 
field out in range from the sound source. This method is one of the 
most widely used in the underwater acoustics community, offers 
excellent performance in terms of speed and accuracy in a range of 
challenging scenarios, and was used for low frequencies.
     dBSeaRay (Ray Tracing Method): The dBSeaRay solver forms a 
solution by tracing rays from the source to the receiver. Many rays 
leave the source covering a range of angles, and the sound level at 
each point in the receiving field is calculated by coherently summing 
the components from each ray. This is currently the only 
computationally efficient method at high frequencies and was used for 
frequencies of 800 Hz and greater.
    Each model utilizes imported environmental data and manually placed 
noise sources in the aquatic environment, which could consist of either 
equipment in the standard dBSea database or a user-specific database 
(i.e., the empirically determined source levels and spectra, discussed 
above). The software then allows the user to include properties 
specific to the project site including bathymetry, seabed, and water 
column characteristics (e.g., sound speed profiles, temperature, 
salinity, and current). Tetra Tech also incorporated variables for each 
pile to account for the soft-start of impact pile driving of foundation 
piles and pile penetration progression.
    For the CVOW-C Project's modeled environment using dBSea, 
bathymetry data were obtained by Tetra Tech from the National 
Geophysical Data Center and U.S Coastal Relief Model (NOAA Satellite 
and Information Service, 2020) and consisted of a horizontal resolution 
of 3 arc seconds (defined as 90 m (295.28 ft)). The data covered an 
area consisting of 138 km x 144 km (452,755.91 ft x 472,440.94 ft) with 
a maximum depth of 459 m (1,505.91 ft). Sound sources were placed near 
the middle of the bathymetry area. The bathymetry data were imported 
into the dBSea model and extents were set for displaying the received 
sound levels. Relatedly, sediment data were also included into the 
model as bottom sedimentation has the potential to directly impact the 
sound propagation. Dominion Energy's site assessment surveys revealed 
the Project Area primarily consists of a predominantly sandy seabed. 
While not reiterated here, Appendix A of Dominion Energy's application 
contains the tables that include the geoacoustic properties of the sub-
bottom sediments for modeling scenarios involving the more offshore WTG 
and OSS foundations (see Table Z-5) and for the nearshore temporary 
cofferdams (see Table Z-6).
    Given that the sound speed profile in an aquatic environment varies 
throughout the year, Tetra Tech calculated seasonal sound speed 
profiles based on the planned installation schedule presented for the 
CVOW-C Project. Dominion Energy would only install WTG and OSS 
foundations between May 1st and October 31st, annually, hence an 
average sound speed profile was calculated for this time period. Sound 
speed profile data were obtained from the NOAA Sound Speed Manager 
software incorporating World Ocean Atlantic 2009 extension algorithms. 
A sensitivity analysis was performed on the monthly sound speed 
information to determine the most conservative sound modeling results. 
The average sound speed profile obtained from this dataset was directly 
included into the dBSea model (see Figure 3 in Attachment Z-1 in 
Dominion Energy's application (Appendix A)). This same approach was 
undertaken for temporary cofferdam installation.
    The scenarios for WTG monopile and OSS jacket pin pile installation 
were modeled using a vertical array (based on third-octave band sound 
characteristics that was adjusted for site-specific parameters, 
including expected hammer energy and the number of hammers strikes 
needed per each scenario) of point sources spaced at 1-m intervals. 
Each of the third octave band center frequencies from 12.5 Hz up to 20 
kHz of the source spectra was modeled. In order to conservatively 
account for the presence of pile driving sound at high-frequencies, a 
constant 15 dB/decade roll-off is applied to the modeled spectra after 
the second spectral peak. The spectra source levels for impact driving 
of monopile and pin piles can be found in Figure 10 of the CVOW-C ITA 
application. The vibratory pile driving spectra, which is available in 
Figure 11 of the ITA application, used reference information from iTAP 
(Gerke and Bellmann, 2012), the California Department of Transportation 
(CALTRANS, 2015), and from measurements of vibratory driving collected 
by Tetra Tech. Based on the description above, Tetra Tech determined an 
appropriate sound speed profile to input into dBSea by pulling the 
average sound speed profile for the construction period (May 1st to 
October 31st), following the schedule provided by Dominion Energy. No 
information was pulled for November 1st through April 30th, as no pile 
driving is planned due to seasonal restrictions regarding the North 
Atlantic right whale. The monthly sound speed profile for the planned 
WTG and OSS foundation construction period is found in Figure 12 in the 
CVOW-C ITA application.
    The sound level estimates are calculated from the generated three-
dimensional sound fields and then, at each sampling range, the maximum 
received level that occurs within the water column is used as the 
received level at that range. The dBSea model allows for a maximum 
received level-over-depth approach (i.e., the maximum received level 
that occurs within the water column at each calculation point). These 
maximum-over-depth (Rmax) values are then compared to 
predetermined threshold levels to determine exposure and acoustic 
ranges to Level A harassment and Level B harassment threshold 
isopleths. However, the ranges to a threshold typically differ among 
radii from a source and also might not be continuous along a radii 
because sound levels may drop below threshold at some ranges and then 
exceed threshold at farther ranges. Both the Rmax (the 
maximum

[[Page 4398]]

range in the model at which the sound level was calculated) and 
R95 (excludes ends of protruding areas or small 
isolated acoustic foci not representative of the nominal ensonified 
zone) were calculated for each of the relevant regulatory thresholds. 
The difference between Rmax and R95 
depends on the source directivity and the heterogeneity of the acoustic 
environment. To minimize the influence of these inconsistencies, 5 
percent of the farthest such footprints were excluded from the model 
data. The resulting range, R95, was chosen to 
identify the area over which marine mammals may be exposed above a 
given threshold because, regardless of the shape of the maximum-over-
depth footprint, the predicted range encompasses at least 95 percent of 
the horizontal area that would be exposed to sound at or above the 
specified threshold.
    Here we note that Tetra Tech and MAI did not calculate or provide 
exposure ranges to the Level A harassment SELcum thresholds 
in the ITA application as provided by other offshore wind developers in 
their ITA application. Instead, Dominion Energy chose to utilize 
acoustic ranges (R95) values in its analysis, which 
NMFS concurs is also a reasonable and more conservative approach and 
likely results in somewhat comparatively larger zones. Dominion 
Energy's application and this rule include the R95 
ranges as these are representative of the expected underwater acoustic 
footprints during foundation and cofferdam installation.
    Temporary cofferdams followed a similarly described approach. To 
estimate the distances to the harassment isopleths from the vibratory 
installation of sheet piles, it was assumed that the vibratory pile 
driver would use approximately 1,800 kilonewtons of vibratory force 
over 60 minutes. Given the close proximity of all temporary cofferdams 
in the nearshore environment and the relatively same installation depth 
(3.3. m), a single representative location (i.e., the centermost 
cofferdam) was used for the modeling analysis. As already described 
above for foundation modeling, the same dBSea process using unique 
environmental variables and sediment data (i.e., predominantly sand) 
was applied for cofferdams. Dominion Energy applied a summary sound 
speed profile to estimate propagation from cable landfall pile driving 
given this work would most likely occur between May 1st and October 
31st. To calculate the ranges to acoustic thresholds, Tetra Tech 
utilized a maximum received level-over-depth approach where the maximum 
received sound level that occurs within the water column at each 
sampling point was used. Tetra Tech calculated both the Rmax 
and the R95 for each of the marine mammal regulatory 
thresholds.
Animal Movement Modeling
    To estimate the probability of exposure of animals to sound above 
NMFS' harassment thresholds during foundation installation, MAI 
integrated the sound fields generated from the source and propagation 
models described above with marine mammal species-typical behavioral 
parameters (e.g., dive parameters, swimming speed, and course/direction 
changes). Animal movement modeling was performed for all marine mammal 
species determined to potentially occur within the CVOW-C Project Area 
to estimate the amount of potential acoustic exposures above NMFS' 
Level A (PTS) harassment and Level B (behavioral) harassment 
thresholds. Animat modeling was conducted for four scenarios (three for 
WTGs, one for OSS) that were determined to be representative of the 
types of construction activities expected at three different locations 
(two for WTGs (one shallow (21 m (69 ft)) and one deep (37 m (121 ft)) 
location) and one for OSSs (28 m (92 ft))). These locations were 
selected to appropriately observe the range of effects of sound 
propagation. The modeled areas are shown in Figure Z-4 in Dominion 
Energy's Underwater Acoustic Assessment (Appendix A in the 
application).
    MAI's animat modeling was conducted using the Acoustic Integration 
Model (AIM; Frankel et al., 2002), which is a Monte Carlo based 
statistical model in which multiple iterations of realistic predictions 
of acoustic source use as well as animal distribution and movement 
patterns are conducted to provide statistical predictions of estimated 
effects from exposure to underwater sound transmissions. By using AIM, 
each acoustic source and receiver were modeled using the same concept 
as animats. For each species, separate AIM simulations were developed 
and iterated for each modeling scenario and activity location. During 
the simulations, animats were randomly distributed within the model 
simulation area and the predicted received sound level was estimated 
every 30 seconds to create a history over a 24-hour period. Animats 
were also pre-programmed to move every 30 seconds based upon species-
specific behaviors. At the end of each 30 second interval, the received 
sound level (in dB RMS) for each animat was recorded.
    Animats that exceed NMFS' acoustic thresholds were identified and 
the range for the exceedances determined. The output of the simulation 
is the exposure history for each animat within the simulation, and the 
combined history of all animats gives a probability density function of 
exposure during the project. The number of animals expected to exceed 
the regulatory thresholds is determined by scaling the probability of 
exposure by the species-specific density of animals in the area. By 
programming animats to behave like marine species that may be exposed 
to foundation installation noise during pile driving, the animats are 
exposed to the sound fields in a manner similar to that expected for 
real animals.

Static Take Estimate Method

    Take estimates from cable landfall construction activities 
(cofferdam and goal post installation and removal) and HRG surveys were 
calculated based on a static method (i.e., animal movement modeling was 
not conducted for these activities). Take estimates produced using the 
static method are the product of density, ensonified area, and number 
of days of pile driving work. Specifically, take estimates are 
calculated by multiplying the expected densities of marine mammals in 
the activity area(s) by the area of water likely to be ensonified above 
the NMFS defined threshold levels in a single day (24-hour period). 
Next that product is multiplied by the number of days pile driving is 
likely to occur. A summary of this method is illustrated in the 
following formula:

Estimated Take = D x ZOI x # of days

Where:

D = average species density (per 100 km\2\); and
ZOI = maximum daily ensonified area to relevant thresholds.

    This methodology was utilized for impact pile driving associated 
with goal posts, vibratory pile driving associated with temporary 
cofferdams, and active acoustic source use from HRG surveys as no 
exposure modeling was conducted.

Density and Occurrence

    In this section, we provide information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. As noted above, depending on the species and activity 
type, and as described in the Estimated Take section for each activity 
type, the calculated number of takes and the number of takes that NMFS 
authorizes is based on the highest estimate of take resulting from

[[Page 4399]]

full consideration of density models, average group sizes, or site-
specific survey data.
    Dominion Energy applied the Duke University Marine Geospatial 
Ecology Laboratory marine mammal habitat-based density models (https://seamap.env.duke.edu/models/Duke/EC/ EC/) to estimate take from WTG and OSS 
foundation installation, temporary goal post installation and removal, 
temporary cofferdam installation and removal, and HRG surveys.
    The Duke habitat-based density models delineate species' density 
into 5 x 5 km (3.1 x 3.1 mi) grid cells (as opposed to the 10 x 10 km 
(6.2 x 6.2 mi) grid cells previously used in past Roberts et al. 
datasets for all species, with exception for the North Atlantic right 
whale). Although the density grid cells are 25 km\2\ (9.7 mi\2\), the 
values are still reported per 100 km\2\ (38.6 mi\2\). Based on the area 
across which different specified activities are conducted (i.e., WTG 
and OSS foundation installation, nearshore cable landfall activities, 
and HRG surveys), appropriate averaged density estimates are applied to 
exposure and/or take calculations for each area.
    For foundation installation, densities were extracted from grid 
cells within the Lease Area and those extending 8.9 km (5.53 mi) beyond 
the Lease Area boundaries. The grid cells within the 8.9 km perimeter 
area were incorporated to account for the largest ensonified area to 
the Level B harassment threshold; thereby representing the furthest 
extent where potential impacts to marine mammals could be expected. The 
density in the grid cells selected were averaged for each month to 
provide a mean monthly density for each marine mammal species and/or 
stock. In some cases, the density models combine multiple species 
(i.e., long-finned and short-finned pilot whales, gray and harbor 
seals) or stocks (i.e., Southern migratory coastal and the Western 
North Atlantic offshore bottlenose dolphin stocks), or it may not be 
possible to derive monthly/seasonal densities for some species so 
annual densities were used instead (i.e., pantropical spotted dolphins, 
pilot whale spp.).
Group Size and PSO Data Considerations
    The exposure estimates from the animal movement modeling or static 
methods described above directly informed the take estimates. In some 
cases, adjustments to the density-based exposure estimates may be 
necessary to fully account for all animals that could be taken during 
the specified activities. This could consist of an adjustment based on 
species group size or observations or acoustic detections provided in 
monitoring reports.
    For some species, observational data from PSOs aboard HRG survey 
vessels indicate that the density-based exposure estimates may be 
insufficient to account for the number of individuals or type of 
species that may be encountered during the planned activities. As an 
example, pantropical spotted dolphins have been included in the 
requested take request based on prior PSO observation data, obtained 
via the 2020-2021 monitoring report from under previously issued (and 
subsequently modified) HRG IHAs to Dominion Energy occurring in and 
around the Lease Area (see RPS (2018), AIS, Inc. (2020), and RPS 
(2021)). For other less-common species, the predicted densities from 
Roberts et al. (2023) are very low and the resulting density-based 
exposure estimate was less than a single animal or a typical group size 
for the species. In such cases, the mean group size was considered as 
an alternative to the density-based take estimates to account for 
potential impacts on a group during an activity.
    Regardless of methodology used (i.e., density-based, group size, 
PSO data), Dominion Energy requested, and NMFS has conservatively 
authorized, take based on the highest amount of exposures estimated 
from any given method. Below we present the results of the 
methodologies described above, including distances to NMFS thresholds, 
and take estimates associated with each activity.

WTG and OSS Foundation Installation

    Here, we present the construction scenarios Dominion Energy applied 
to its analysis, which NMFS is carrying forward in this rule, and the 
resulting acoustic ranges to Level A harassment and Level B harassment 
thresholds, exposure estimates, and take estimates from WTG and OSS 
foundation installation following the aforementioned modeling 
methodologies.
    To complete the project, Dominion Energy has prepared four 
foundation installation construction schedules (three for WTG 
installation and one for OSS installation), as construction schedules 
cannot be fully predicted due to uncontrollable environmental factors 
(e.g., weather) and installation schedules include variability (e.g., 
due to drivability). Since three locations had been identified where 
OSSs would be constructed, the modeling relied on a single site that 
would result in further propagation distance. This site was determined 
to be representative of all three OSS locations.
    For the monopile scenarios, two types of pile driving conditions 
are expected for each monopile installed: a standard pile driving 
situation (Scenario 1) and a hard-to-drive (Scenario 2) situation. 
During the installation of one monopile for WTG foundations per day, 
either a standard or hard-to-drive scenario may be necessary, which 
would determine the duration of vibratory driving and the number of 
impact hammer strikes needed. In situations where two monopile WTGs 
would be installed per day (i.e., Scenario 3), Dominion Energy assumed 
that only one monopile would consist of a hard-to-drive scenario and 
the other would always be standard. Dominion Energy has committed to 
not installing two hard-to-drive foundations in a single day. For OSS 
jacket foundations, a single installation approach (i.e., Scenario 4; 
impact pile driving only) is expected for the installation of up to two 
pin piles per day.
    Dominion Energy has assumed that a maximum of two monopiles may be 
installed per day or that a maximum of two pin piles would be installed 
per day. No concurrent pile driving would occur. Due to the risk of 
pile run, Dominion Energy expects to utilize a joint vibratory-impact 
pile driving installation approach on all WTG and OSS foundation piles. 
All scenarios, including associated pile driving details, expected to 
occur can be found in Table 5 below.

                                                 Table 5--WTG and OSS Foundation Installation Scenarios
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Installation scenario                 Foundation installed \c\            Installation details        Duration of installation activity \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1: Standard Driving..........  9.5 m diameter monopile foundation (1   Vibratory pile driving...  60 minutes.
                                         pile per day).
                                                                                Impact pile driving......  3,240 hammer strikes (4,000 kJ).

[[Page 4400]]

 
Scenario 2: Hard-to-drive.............  9.5 m diameter monopile foundation (1   Vibratory pile driving...  30 minutes.
                                         pile per day).
                                                                                Impact pile driving......  3,720 hammer strikes (4,000 kJ).
Scenario 3: One standard and one hard-  9.5 m diameter monopile foundations (2  Vibratory pile driving...  90 minutes.
 to-drive \b\.                           piles per day).
                                                                                Impact pile driving......  6,960 hammer strikes (4,000 kJ).
Scenario 4: OSS Jacket Foundation.....  2.8 m diameter pin piles (2 piles per   Vibratory pile driving...  120 minutes.
                                         day).
                                                                                Impact pile driving......  15,120 hammer strikes (3,000 kJ).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The hammer energy of 4,000 kJ represents the maximum hammer energy; however, Dominion Energy anticipates the energy will be less than this.
\b\ Two hard-to-drive piles would never be installed on the same day.
\c\ Dominion Energy may build up to two foundations per day, consisting of either WTG monopiles or pin piles per jacket foundations. However, on some
  days, only one monopile may be built per day and would consist of a single standard driven pile or a hard-to-drive pile.

    As described above, underwater noise associated with the 
construction of offshore components of CVOW-C would predominantly 
result from vibratory and impact pile driving monopile and jacket 
foundations. As previously described, Dominion Energy employed Tetra 
Tech to conduct acoustic modeling and MAI to conduct animal movement 
exposure modeling to better understand sound fields produced during 
these activities and to estimate exposures. For installation of 
foundation piles, animal movement modeling was used to estimate 
exposures.
    Presented below are the acoustic ranges to the Level A harassment 
and Level B harassment thresholds for WTG installation in the deeper 
environment (Table 6), WTG installation in the shallower water (Table 
7), and OSS installation in the single representative location (Table 
8). All ranges shown are assuming 10 dB of sound attenuation as 
Dominion Energy would employ a noise attenuation system (NAS; 
consisting of at least a double bubble curtain) during all vibratory 
and impact pile driving of monopile and jacket foundations. Although 
three attenuation levels were evaluated, and Dominion Energy has not 
yet finalized its mitigation strategy, Dominion Energy and NMFS both 
anticipate that the noise attenuation system ultimately chosen will be 
capable of reliably reducing source levels by 10 dB. Therefore, 
modeling results assuming 10-dB attenuation are carried forward in this 
analysis for WTG and OSS foundation installation. See the Mitigation 
section for more information regarding the justification for the 10 dB 
assumption.
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    Dominion Energy provided seasonal density estimates during the time 
of year when WTG and OSS foundations would be installed following the 
methodology provided in the Density and Occurrence section above. The 
resulting densities used in the exposure estimate calculations for 
foundation installation are provided in Table 9.

                                    Table 9--Mean Seasonal Density Estimates for WTG and OSS Foundation Installation
                     [Inclusive of the 8.9 Km perimeter applied for the largest Level B harassment zone from vibratory pile driving]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Mean density (individual/km\2\)
                                                                                  ----------------------------------------------------------------------
             Marine mammal species                            Stock                  Spring     Summer (June to   Fall (September to October)    Annual
                                                                                     (May)          August)                   \c\               density
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..................  Western North Atlantic...........    0.00015             0.00004                      0.00005  .........
Fin whale *...................................  Western North Atlantic...........    0.00069             0.00036                      0.00019  .........
Humpback whale................................  Gulf of Maine....................    0.00136             0.00023                      0.00040  .........
Minke whale...................................  Canadian East Coast..............    0.00519             0.00028                      0.00011  .........
Sei whale *...................................  Nova Scotia......................    0.00021             0.00001                      0.00004  .........
Sperm whale *.................................  North Atlantic...................    0.00003             0.00000                      0.00000  .........
Pygmy sperm whale.............................  Western North Atlantic...........    \a\ n/a             \a\ n/a                      \a\ n/a  .........
Atlantic spotted dolphin......................  Western North Atlantic...........    0.00507             0.05873                      0.03822  .........
Atlantic white-sided dolphin..................  Western North Atlantic...........    \a\ n/a             \a\ n/a                      \a\ n/a  .........
Bottlenose dolphin \d\........................  Southern Migratory Coastal.......    0.13098             0.13509                      0.13852  .........
                                                Western North Atlantic, Offshore.    0.07352             0.07415                      0.06439  .........
Clymene dolphin...............................  Western North Atlantic...........    \a\ n/a             \a\ n/a                      \a\ n/a  .........
Common dolphin................................  Western North Atlantic...........    0.05355             0.00559                      0.00103  .........
False killer whale............................  Western North Atlantic...........    \a\ n/a             \a\ n/a                      \a\ n/a  .........
Melon-headed whale............................  Western North Atlantic...........    \a\ n/a             \a\ n/a                      \a\ n/a  .........
Long-finned pilot whale \e\...................  Western North Atlantic...........      (\b\)               (\b\)                        (\b\)    0.00098
Short-finned pilot whale \e\..................  Western North Atlantic...........      (\b\)               (\b\)                        (\b\)    0.00098
Pantropical spotted dolphin...................  Western North Atlantic...........      (\b\)               (\b\)                        (\b\)    0.00008
Risso's dolphin...............................  Western North Atlantic...........    0.00084             0.00042                      0.00021  .........
Harbor porpoise...............................  Western North Atlantic...........    0.00315             0.00000                      0.00000  .........
Gray seal.....................................  Western North Atlantic...........    0.01828             0.00001                      0.00047  .........
Harbor seal...................................  Western North Atlantic...........    0.01828             0.00001                      0.00047  .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ These species were added to the list of marine mammal species that could potentially be harassed by project activities after the animat analysis was
  completed so no exposure estimates were calculated. Instead, a standard group size of animals was used instead for any analysis pertaining to this
  species.
\b\ For these species, monthly densities were not available. Instead, annual densities were used.
\c\ As no foundation installation is planned to occur in November or December, the relevant values were not included.
\d\ Within the Roberts et al. (2023) data, bottlenose dolphin densities are reported as a single ``bottlenose dolphin'' group and are not identified by
  stock. Given that the WTG and OSS foundation installation would be occurring beyond the 20-m isobath, where the stocks are split, estimated take was
  assumed to come from the offshore stock.
\e\ Pilot whale spp. are reported as a single group (Globicephala spp.) and are not species-specific. Because of this, Dominion Energy assumed that the
  density was a collective pilot whale group and could be attributed to either the short-finned or long-finned species.

    MAI set the modeled marine mammal animats to populate each of the 
model areas with the representative nominal densities provided. During 
the modeling, some of the obtained densities were higher than the real-
world density, as to ensure that the results of the animat model 
simulations were not unduly influenced by the spontaneous placement of 
some of the simulated marine mammals and to provide additional 
statistical robustness within the modeling exercise. To obtain the 
final exposure estimates, the modeled results were normalized by the 
ratio of the modeled animat density to the real-world seasonal 
densities. The exposure estimates were derived based on the history of 
exposure within the modeling exercise for each marine mammal species or 
species group. The modeled SEL received by each animat over the 
duration of the construction activity period (e.g., estimated 3 hours 
of driving on a single monopile) and the peak sound pressure level were 
used to calculate the potential for an individual animat to have 
experienced PTS, in accordance with the NOAA Fisheries (2018) 
physiological acoustic thresholds for marine mammals. If an animat was 
not predicted to have experienced PTS, then the sound energy received 
by each individual animat over the 24-hour modeled period was used to 
assess the potential risk of biologically significant behavioral 
reactions. The modeled RMS sound pressure levels were used to estimate 
the potential for behavioral responses, in accordance with the NOAA 
Fisheries (2005b) behavioral criteria.
    For the monopile WTG installation, the exposure calculations 
assumed 176 WTG monopiles would be installed over 2 years, but also 
took into account the need for Dominion Energy to possibly re-pile for 
up to 7 WTG foundations (equating to a total of 183 modeled piling 
events for WTGs). For the jacket foundations using pin piles for the 
OSSs, the modeling assumed that up to 12 pin piles (4 per OSS for up to 
3 total OSSs) would be installed over 2 years. Both of these were 
modeled in accordance with the schedule provided by Dominion Energy.
    Overall, for Year 1 (2024), it was assumed that up to a maximum of 
95 monopiles and all 12 pin piles would be installed. For Year 2, it 
was assumed that a maximum of 88 monopiles (which does account for the 
7 possible re-piling events that may be necessary) would be installed. 
As construction of the WTGs and OSSs are only anticipated to occur in 
the first 2 years of the project (2024 and 2025), animats were only 
calculated for these. Although schedule delays due to weather or other 
unforeseen activities may require Dominion Energy to not complete all 
piling in Year 2, but instead push a limited number of piles to Year 3 
(2026) and/or Year 4 (2027), no modeling was completed for 2026 or 
2027. This is because any piles not completed in 2025 (Year 2) would be 
pushed to 2026 (Year 3) and/or 2027 (Year 4), which means that the 
current analysis has accounted for the total scenario for foundation 
installation activities in Year 2 would be less than estimated here and 
instead would shift some to Years 3 or 4. Please see Table 10 for the 
derived exposure estimates during WTG and OSS foundation installation 
over 2 years (2024 and 2025).
    The exposure estimates for both the installation of WTGs and OSSs 
over 2

[[Page 4407]]

years (2024 and 2025) were then adjusted, for some species, based on 
group size characteristics known through the scientific literature and 
received sighting reports from previous projects and/or surveys. As 
indicated below, when density-based exposure estimates were lower than 
numbers that were found in the scientific literature or via real-world 
sighting reports, these estimates were adjusted by either a standard 
group size for the species/stock or by PSO observational data. The 
species-specific requested and authorized take estimates are listed 
below, in accounting for these adjustments, where applicable:
     North Atlantic right whale: Take by Level B harassment for 
foundation installation adjusted for group size of one individual for 
months with monthly density <0.01 per 100 km\2\ (Roberts et al., 2023) 
when construction may occur (May-October) and two individuals for 
months with monthly density >0.01 when construction may occur (May-
October);
     Fin whale: Adjusted based on PSO data (max daily number x 
days of activity);
     Humpback whale: Adjusted based on PSO data (max daily 
number x days of activity);
     Sperm whale: Adjusted based on one group size per year 
(three per Barkaszi et al., 2019);
     Atlantic white-sided dolphin: Adjusted based on 1 group 
size per year (15 per Reeves et al., 2002);
     Pantropical spotted dolphin: Adjusted based on 1 group 
size per year (20 per Reeves et al., 2002);
     Short-beaked common dolphin: Adjusted based on 1 group 
size (20 individuals per group) per day (Dominion Energy, 2021);
     Clymene dolphin: Adjusted based on one group size (five 
per AIS, Inc. (2020));
     False killer whale: Adjusted based on one group size per 
year (four per RPS (2021));
     Melon-headed whale: Adjusted based on one group size per 
year (five per RPS (2018)); and
     Pygmy sperm whale: Adjusted based on one group size per 
year (one per RPS (2021)).
    In Table 10, we present the calculated exposure estimates and the 
maximum amount of take authorized during foundation installation of 
WTGs and OSSs during the 5-year effective period for the CVOW-C 
Project. As demonstrated by the exposure modeling results, which do not 
consider mitigation other than the use of a sound attenuation 
device(s), the potential for Level A harassment is very low. However, 
there may be some situations where pile driving cannot be stopped due 
to safety concerns related to pile instability.
    As previously discussed, only 176 WTG and 3 OSS (using a maximum of 
12 pin piles) foundations would be permanently installed for the CVOW-C 
Project; however, Dominion Energy has considered the possibility that 
some piles may be started but not fully installed at some locations due 
to installation feasibility issues. Conservatively, Dominion Energy has 
estimated up to seven additional pile driving events may be needed in 
the event this occurs. Per Dominion Energy's estimated construction 
schedule, it is anticipated that all of these foundation installation 
activities would occur in Year 1 (2024) and Year 2 (2025); therefore, 
the take estimates below reflect the foundation pile driving activities 
associated with 183 WTG foundations and 3 OSSs, to account for the 7 
additional re-piling events that may occur if monopiles were started in 
one location but then needed to be re-driven at another WTG position.

 Table 10--Exposures Estimates and Maximum Amount of Take Authorized by Level A Harassment and Level B Harassment From Vibratory and Impact Pile Driving
                          Associated With 183 WTG \f\ and 3 OSS Total Installation Events, Assuming 10 dB of Noise Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Estimated exposures                              Takes authorized
                                                         -----------------------------------------------------------------------------------------------
                                                                   2024                    2025                    2024                  2025 \e\
       Marine mammal species                Stock        -----------------------------------------------------------------------------------------------
                                                            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 * \c\..  Western North              \c\ 1           3       \c\ 1           2           0           6           0           6
                                     Atlantic.
Fin whale *.......................  Western North                  4          21           3          19           4         112           3          90
                                     Atlantic.
Humpback whale....................  Gulf of Maine.......           4          18           4          14           4          29           4         104
Minke whale.......................  Canadian East Coast.           8          53           7          48           8          53           7          48
Sei whale *.......................  Nova Scotia.........           1           3           1           2           1           3           1           2
Sperm whale *.....................  North Atlantic......           0           1           0           1           0           3           0           3
Pygmy sperm whale \g\.............  Western North            \a\ n/a     \a\ n/a     \a\ n/a     \a\ n/a           0           1           0           1
                                     Atlantic.
Atlantic spotted dolphin..........  Western North                  0       2,108           0       1,896           0       2,108           0       1,896
                                     Atlantic.
Atlantic white-sided dolphin \d\..  Western North            \h\ n/a     \h\ n/a     \h\ n/a     \h\ n/a           0          15           0          15
                                     Atlantic.
Bottlenose dolphin \a\............  Southern Migratory             0           0           0           0           0           0           0           0
                                     Coastal.
                                    Western North                  0       4,290           0       3,602           0       4,290           0       3,602
                                     Atlantic, Offshore.
Clymene dolphin \g\...............  Western North            \h\ n/a     \h\ n/a     \h\ n/a     \h\ n/a           0           5           0           5
                                     Atlantic.
Common dolphin....................  Western North                  0         594           0         559           0       1,720           0       1,380
                                     Atlantic.
False killer whale \g\............  Western North            \h\ n/a     \h\ n/a     \h\ n/a     \h\ n/a           0           4           0           4
                                     Atlantic.
Melon-headed whale \g\............  Western North            \h\ n/a     \h\ n/a     \h\ n/a     \h\ n/a           0           5           0           5
                                     Atlantic.
Pilot whale spp...................  Western North                  0          61           0          50           0          61           0          50
                                     Atlantic.
Pantropical spotted dolphin.......  Western North                  0           4           0           4           0          20           0          20
                                     Atlantic.
Risso's dolphin...................  Western North                  0          25           0          23           0          25           0          23
                                     Atlantic.
Harbor porpoise...................  Western North                  1          23           1          20           1          23           1          20
                                     Atlantic.
Gray seal \b\.....................  Western North                  1          62           1          53           1          62           1          53
                                     Atlantic.
Harbor seal \b\...................  Western North                  1          62           1          53           1          62           1          53
                                     Atlantic.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Given foundation installation would be confined to an area beyond the 20-m isobath, all of the estimated take has been allocated to the offshore
  stock.
\b\ The take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal.
\c\ Although Level A harassment exposure estimates were calculated for North Atlantic right whales, Dominion Energy has not requested, nor does NMFS
  propose to authorize, any take by Level A harassment for this species as the enhanced mitigation measures would reduce these to zero.
\d\ Atlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the take request based on a standard group
  size annually. We note that animat/exposure modeling was not done for this species.
\e\ In the event that the construction schedule is delayed in 2025, some WTGs may need to be constructed in 2026 and/or 2027 instead, which would reduce
  the number of WTGs constructed in 2025 but it would not change the maximum number of takes of marine mammals authorized in this rule. Instead, the
  values shown here for 2025 would be reduced with the remaining take carried over into 2026 and/or 2027.

[[Page 4408]]

 
\f\ This analysis conservatively assumes 183 independent piling events for WTG monopile foundations would occur, although only 176 permanent WTGs would
  be installed.
\g\ While these species were not originally included in Dominion Energy's request, given recorded sightings/detections of these species during previous
  Dominion Energy IHAs in the same general area, NMFS has included these as species that may be harassed (by Level B harassment only) during the 5-year
  effective period of this rulemaking.
\h\ This species was incorporated after the animat analysis was completed so no take was estimated. Instead, a standard group size of animals was used
  instead for any analysis pertaining to this species.

    Additionally, as previously discussed above in the Description of 
the Specified Activities section, Dominion Energy's construction 
schedule may shift during the project due to bad weather or other 
uncontrollable and unforeseen events, which may require foundation 
installation to shift and occur in 2026 and/or 2027 instead. However, 
in this situation, the maximum amount of take authorized would not 
change; instead, some of the take that would have occurred in 2025 
would instead occur in 2026 and/or 2027, which means that the take of 
marine mammals during 2025 would be less than predicted here, as those 
takes would be shifted into 2026 and/or 2027.

Cable Landfall Construction

    Dominion Energy plans to install and remove both temporary goal 
posts comprised of steel pipe piles (to guide the placement of casing 
pipes installed using a trenchless installation method that does not 
produce noise levels with the potential to result in marine mammal 
harassment) and temporary cofferdams comprised of steel sheet piles at 
cable landfall locations.
Temporary Cofferdams
    Dominion Energy would install and remove up to nine temporary 
cofferdams adjacent to the firing range at the State Military 
Reservation in Virginia Beach using a vibratory hammer. Dominion Energy 
assumed that a maximum of 6 days would be needed to install and remove 
a single cofferdam (3 days to install and 3 days to remove). Vibratory 
pile driving would occur for up to 60 minutes per day (1 hour) and up 
to 20 sheet piles could be installed per day (each cofferdam would 
necessitate 30 to 40 sheet piles, depending on the final chosen 
configuration). Table 11 includes details for the cofferdam scenario.

                                                         Table 11--Temporary Cofferdam Scenario
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Sound source level (dB re: 1 [mu]Pa at    Duration of installation
       Installation scenario          Foundation installed    Installation details                    1 m)                    activity for a single pile
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cofferdam Installation.............  Sheet piles...........  Vibratory pile driving  195 SEL RMS...........................  60 minutes.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Underwater noise associated with the construction of temporary 
cofferdams would only result from vibratory pile driving of steel sheet 
piles. As already described previously, Dominion Energy employed Tetra 
Tech to conduct the acoustic modeling to better understand the sound 
fields produced during these activities. These results also utilized 
information provided by iTAP (see Remmers and Bellmann (2021) 
Attachment Z-3 in Appendix A of Dominion Energy's application).
    Following a similar approach to the one described for foundation 
installation, Tetra Tech calculated the ranges to the defined acoustic 
thresholds using a maximum received level-over-depth approach where the 
maximum received sound level that occurs within the water column at 
each sampling point was used. Tetra Tech calculated both the 
Rmax and the R95% for each of the marine mammal 
regulatory thresholds. The results of this analysis are presented below 
in Table 12 and are presented in terms of the R95% range, 
based on the cofferdam modeling scenario found in Table 11 above. Given 
the nature of vibratory pile driving and the very small distances to 
Level A harassment thresholds (0-108 m (0-354 ft); assuming 10 dB of 
sound attenuation), which accounts for 1 hour of vibratory pile driving 
per day, vibratory driving is not expected to result in Level A 
harassment. As Dominion Energy did not request any Level A harassment 
incidental to the installation and/or removal of sheet piles for 
temporary cofferdams, and based on these small distances, NMFS is not 
authorizing any in this action.

Table 12--Acoustic Ranges (R95%), in Meters, to Level A Harassment (PTS) and Level B Harassment Thresholds From Vibratory Pile Driving During Sheet Pile
                             Installation for Marine Mammal Function Hearing Groups, Assuming an Average Sound Speed Profile
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Distance to marine mammal thresholds
                                                                              --------------------------------------------------------------------------
                                                                                              Level A harassment (PTS)                      Level B
                                                                              --------------------------------------------------------     harassment
             Activity                 Pile parameters        Approach used                                                                 (behavior)
                                                                                 LFC (199      MFC (198      HFC (173                 ------------------
                                                                                   SEL)          SEL)          SEL)      PP (201 SEL)   All species (120
                                                                                                                                            SPL RMS)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Temporary Cofferdams.............  2.8 m diameter Pin    Vibratory Pile                108             0             0             0              3,097
                                    pile.                 Driving.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds.


[[Page 4409]]

    dBSea was used to derive the acoustic ranges to the Level B 
harassment threshold, assuming no sound attenuation, around the cable 
landfall site. This included the ensonified area that was truncated by 
any land, which yielded an area (approximately 1 km\2\) smaller than 
the radius of a circle (assuming 3,097 m). For the vibratory pile 
driving for temporary cofferdams associated with the sheet pile 
installation and removal, the daily ensonified area was 29.04 km\2\ 
(11.21 mi\2\), based on the acoustic range to the Level B harassment 
threshold (3,097 m), with a total ensonified area of 4,980 km\2\ 
(1,922.8 mi\2\) over 54 days of installation.
    Density data from Roberts et al. (2023) were mapped within the 
boundary of the CVOW-C Project Area using geographic information system 
(GIS) software (ESRI, 2017). To estimate marine mammal density around 
the temporary cofferdams, the greatest ensonified area was intersected 
with the density grid cells for each individual species to select all 
of those grid cells that the ensonified area intersects, representing 
the furthest extent where potential impacts to marine mammals could be 
expected. Maximum monthly densities (i.e., the maximum density found in 
each grid cell) were averaged by season (spring (May), summer (June 
through August), and fall (September through October). Since the timing 
of landfall construction activities may vary somewhat from the prepared 
schedule, the highest average seasonal density from May through October 
(Dominion Energy's planned construction period for temporary 
cofferdams) for each species was selected and used to estimate 
exposures from temporary cofferdam installation and removal (Table 13).

Table 13--Highest Average Seasonal Marine Mammal Densities for Nearshore
  Trenchless Installation (Temporary Cofferdam and Temporary Goal Post
                        Installation) Activities
------------------------------------------------------------------------
                                                     Highest average
    Marine mammal species            Stock           seasonal density
                                                  (individual/100 km\2\)
------------------------------------------------------------------------
North Atlantic right whale *.  Western North                       0.024
                                Atlantic.
Fin whale *..................  Western North                       0.041
                                Atlantic.
Humpback whale...............  Gulf of Maine...                    0.054
Minke whale..................  Canadian East                       0.124
                                Coast.
Sei whale *..................  Nova Scotia.....                    0.015
Sperm whale *................  North Atlantic..                    0.001
Pygmy sperm whale............  Western North                     \a\ n/a
                                Atlantic.
Atlantic spotted dolphin.....  Western North                       2.370
                                Atlantic.
Atlantic white-sided dolphin.  Western North                       0.325
                                Atlantic.
Bottlenose dolphin...........  Southern                           17.054
                                Migratory
                                Coastal.
Clymene dolphin..............  Western North                     \a\ n/a
                                Atlantic.
Common dolphin...............  Western North                       1.808
                                Atlantic.
False killer whale...........  Western North                     \a\ n/a
                                Atlantic.
Melon-headed whale...........  Western North                     \a\ n/a
                                Atlantic.
Pilot whale spp..............  Western North                       0.065
                                Atlantic.
Pantropical spotted dolphin..  Western North                       0.007
                                Atlantic.
Risso's dolphin..............  Western North                       0.030
                                Atlantic.
Harbor porpoise..............  Western North                       0.438
                                Atlantic.
Gray seal....................  Western North                       1.775
                                Atlantic.
Harbor seal..................  Western North                       1.775
                                Atlantic.
------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ These species were added to the list of species that could be
  potentially impacted by the project after the adequate and complete
  date. However, given the rare occurrence of these species in the
  Project Area, authorized take was included only for foundation
  installation, and not for nearshore cable landfall activities.

    For some species where little density information is available 
(i.e., pilot whales), the annual density was used instead. Given 
overlap with the pinniped density models as the Roberts et al. (2023) 
dataset does not distinguish between some species, a collective 
``pinniped'' density was used for both harbor and gray seal species and 
later split for the take estimates and request (Roberts et al., 2016). 
This approach was the same as described in the WTG and OSS Foundation 
Installation section. Refer back to Table 13 for the densities used for 
temporary cofferdam installation and removal.
    Given that use of the vibratory hammer during cofferdam 
installation and removal may occur on up to 6 days per cofferdam (3 
days for installation and 3 days for removal), a max total of 54 days 
was assumed necessary for all 9 cofferdams. To calculate exposures, the 
highest average seasonal marine mammal densities were multiplied by the 
daily ensonified area (29.04 km\2\) for installation and removal of 
sheet piles for temporary cofferdams. To yield the total estimated take 
for the activity, the per day take was multiplied by the ensonified 
area by the total number of days for the activity. To do this, the 
ensonified area was overlaid over the Roberts et al. (2023) densities 
to come up with a per day take which was then multiplied by 54 to 
account for the total number of days. This produced the results shown 
in Table 14. The product is then rounded, to generate an estimate of 
the total number of instances of harassment expected for each species 
over the duration of the work.
    Given the small distances to the Level A harassment isopleths, 
Level A harassment incidental to this activity is not anticipated, even 
absent mitigation. Therefore, Dominion Energy did not request, and NMFS 
is not authorizing, Level A harassment related to cofferdam 
installation and removal.
    Calculated take estimates for temporary cofferdams were then 
adjusted, for some species, based on group size characteristics known 
through the scientific literature and received sighting reports from 
previous projects and/or surveys. These group size estimates for 
cofferdam installation and removal are described below and were 
incorporated into the estimated take to yield the requested and 
authorized take estimate:

[[Page 4410]]

     Atlantic spotted dolphin: Adjusted based on 1 group size 
per day (20 per Dominion Energy, 2020, Jefferson et al., 2015);
     Bottlenose dolphin (Combined Southern Migratory Coastal, 
Western North Atlantic Offshore): Adjusted based on 1 group size per 
day (15 per Jefferson et al., 2015); and
     Common dolphin (short-beaked): Adjusted based on 1 group 
size per day (20 per Dominion Energy, 2021).
    Given that take by Level B harassment is precautionarily 
authorized, assuming 2 years of foundation installation, for Clymene 
dolphins, false killer whales, melon-headed whales, and pygmy sperm 
whales, and given the nearshore nature of cable landfall activities, no 
additional takes (and therefore, no group size adjustments) have been 
authorized for temporary cofferdam installation and removal activities.
    Additionally, beyond group size adjustments, some slight 
modifications were performed for some species, including for harbor 
seals, gray seals, short- and long-finned pilot whales, and bottlenose 
dolphins. More specifically, the takes requested were accrued based on 
a 50/50 split for both pinniped species, as the Roberts et al. (2023) 
data does not differentiate the density by specific pinniped species. 
The density for pilot whales represents a single group (Globicephala 
spp.) and is not species-specific. Due to the minimal occurrence of 
both short-finned and long-finned pilot whales to occur in this area 
due to the shallow water, the requested take was allocated to a 
collective group, although short-finned pilot whales are more commonly 
seen in southern waters. Bottlenose dolphin stocks were split by the 
20-m isobath cutoff, and then allocated specifically to the coastal 
stock of bottlenose dolphins (migratory southern coastal) due to the 
nearshore nature of these activities.
    Below we present the estimated take and maximum amount of take 
authorized during temporary cofferdam installation and removal during 
the 5-year effective period for the CVOW-C Project (Table 14). Take by 
Level A harassment was not requested by Dominion Energy, and it is 
neither expected nor authorized by NMFS. The take authorized accounts 
for three days for installation and 3 days for removal, for a total of 
6 days for each of 9 cofferdams (54 days total). To be conservative, 
Dominion Energy has requested take, by Level B harassment, based on the 
highest exposures predicted by the density-based take estimates, with 
some slight modifications to account for group sizes for some species.
    Although North Atlantic right whales do migrate in coastal waters 
and have been seen off Virginia Beach, Virginia, they are not expected 
to occur in the nearshore waters where work will be occurring. The 
amount of work considered here is limited and would be conducted during 
a time when North Atlantic right whales are less likely to be migrating 
in this area. The distance to the Level B harassment isopleth (3.1 km) 
for installation and removal of the sheet piles associated with the 
cofferdams and the maximum distance to the Level A isopleth (0.11 km) 
remain in shallow waters in the nearshore environment and for a very 
short period of time (approximately 1 hour daily); thus, it is unlikely 
that right whales (or most species of marine mammals considered here) 
would be exposed to vibratory pile driving during cofferdam 
installation and removal at levels close to the 120 dB Level B 
harassment threshold or to the Level A harassment thresholds. Hence, 
Dominion Energy did not request take of North Atlantic right whales 
incidental to this activity and NMFS is not authorizing it.
    We note that these would be the maximum number of animals that may 
be harassed during vibratory pile driving for nearshore temporary 
cofferdams as the analysis conservatively assumes each exposure is a 
different animal. This is unlikely to be the case for all species shown 
here but is the most comprehensive assessment of the level of impact 
from this activity.

     Table 14--Density-Based Exposures and Authorized Take by Level B Harassment From Vibratory Pile Driving
                          Associated With Temporary Cofferdam Installation and Removal
----------------------------------------------------------------------------------------------------------------
                                                                           Density-based    Authorized takes of
           Marine mammal species                        Stock                exposures         marine mammals
----------------------------------------------------------------------------------------------------------------
                                                          Level B harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..............  Western North Atlantic......            0.376                      0
Fin whale *...............................  Western North Atlantic......            0.643                      1
Humpback whale............................  Gulf of Maine...............            0.847                      1
Minke whale...............................  Canadian East Coast.........            1.945                      2
Sei whale *...............................  Nova Scotia.................            0.235                      0
Sperm whale *.............................  North Atlantic..............            0.016                      0
Pygmy sperm whale.........................  Western North Atlantic......          \d\ n/a                \d\ n/a
Atlantic spotted dolphin..................  Western North Atlantic......           37.169                    240
Atlantic white-sided dolphin \c\..........  Western North Atlantic......            5.097                      5
Bottlenose dolphin........................  Southern Migratory Coastal..          267.462                    180
                                            Western North Atlantic,               \a\ n/a                \a\ n/a
                                             Offshore.
Clymene dolphin...........................  Western North Atlantic......          \d\ n/a                \d\ n/a
Common dolphin............................  Western North Atlantic......           28.355                    240
False killer whale........................  Western North Atlantic......          \d\ n/a                \d\ n/a
Melon-headed whale........................  Western North Atlantic......          \d\ n/a                \d\ n/a
Pilot whale spp...........................  Western North Atlantic......            1.019                      1
Pantropical spotted dolphin...............  Western North Atlantic......            0.110                      0
Risso's dolphin...........................  Western North Atlantic......            0.470                      0
Harbor porpoise...........................  Western North Atlantic......            6.869                      7
Gray seal \b\.............................  Western North Atlantic......           13.919                     14
Harbor seal \b\...........................  Western North Atlantic......           13.919                     14
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Given cofferdam installation and removal would be confined to an area below the 20-m isobath, all of the
  estimated take has been allocated to the coastal stock.

[[Page 4411]]

 
\b\ The take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal.
\c\ Atlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the
  take request based on a standard group size annually. We note that animat/exposure modeling was not done for
  this species.
\d\ Given take by Level B harassment was precautionarily authorized during 2 years of foundation installation
  for these species, no take has been calculated for cable landfall construction activities.

Temporary Goal Posts
    To facilitate nearshore, trenchless installation for the export 
cables to shore, Direct Steerable Pipe Tunneling equipment utilizing a 
steerable tunnel boring machine would excavate ground while goal posts 
are used to guide steel casing pipes behind the tunnel boring machine 
using a pipe thruster. For tunneling and boring activities, only the 
impact hammer is expected to cause harassment to marine mammals; all 
other equipment (i.e., pipe thrusting machine, pumps, motors, 
powerpacks, and drill mud processing system) produces lower source 
levels. The pipe thrusting machine does not vibrate or produce any 
noise as it only pushes the casing pipes so no harassment to marine 
mammals is expected to occur from the use of this equipment. Each 
temporary goal post, which would be installed via impact pile driving, 
would consist of 1.07 m (42 in) diameter steel pipe piles. Up to two 
steel pipes could be installed per day for a total duration of 130 
minutes per goal post. The strike rate would require approximately 260 
strikes per pile with a strike duration between 0.5 and 2 seconds. Up 
to 12 goal posts would be needed for each of the 9 Direct Pipe 
(temporary cofferdam) locations, equating to a total of 108 piles 
necessary for the goal posts. Removal of the pipe piles would occur at 
a rate of 2 per day over 54 days to remove all 108 piles. Unlike 
installation, removal of pipe piles is not expected to cause take of 
marine mammals as mechanical and/or hydraulic equipment is used that 
does not produce noise. Because of this, the analysis described below 
only pertains to the installation of goal posts.
    Tetra Tech applied the Level A harassment cumulative PTS criteria 
to a specific tab (for impact pile driving) spreadsheet (User 
Spreadsheet) that reflects NOAA Fisheries' 2018 Revisions to Technical 
Guidance (NOAA Fisheries, 2018a). The User Spreadsheet relies on 
overriding default values, calculating individual adjustment factors, 
and using the difference between levels with and without weighting 
functions for each of the five categories of hearing groups. The new 
adjustment factors in the spreadsheets allow for the calculation of 
SELcum distances and peak sound exposure (PK) distances and 
account for the accumulation (Safe Distance Methodology) using the 
source characteristics (duty cycle and speed) after Silve et al. 
(2014).
    To calculate the distance to the acoustic threshold for Level B 
harassment of marine mammals, Tetra Tech utilizing a spread calculation 
to estimate the horizontal distance to the 160 dB re 1 [mu]Pa isopleth:

SPL(r) = SL-PL(r)

Where:

SPL = sound pressure level (dB re 1 [mu]Pa);
r = range (m), SL = source level (dB re 1 [mu]Pa m); and
PL = propagation loss as a function of distance (calculated as 
20Log10(r)).

    We note that while these methodologies provided by NOAA Fisheries 
are able to calculate the maximum distances to the Level A harassment 
and Level B harassment thresholds, these calculations do not allow for 
the inclusion of site-specific environmental parameters, as was 
described for activities analyzed through dBSea.
    The results of this analysis are presented below in Table 15 and 
are presented in terms of the R95 range. Table 15 
demonstrates the maximum distances to both the regulatory thresholds 
for Level A harassment and Level B harassment for each marine mammal 
hearing group. Given the very small distances to the Level A harassment 
thresholds (4.5-152 m; assuming 10 dB of sound attenuation), which 
accounts for 130 minutes (approximately 2.2 hours) of impact pile 
driving per day, impact driving is not expected to result in Level A 
harassment. As Dominion Energy did not request any Level A harassment 
incidental to the installation and/or removal of steel pipe piles for 
temporary goal posts, and based on these small distances, NMFS is not 
authorizing any in this action.

Table 15--Ranges, in Meters, to Level A Harassment (PTS) and Level B Harassment Thresholds From Impact Pile Driving During Steel Pipe Pile Installation of Goal Posts for Marine Mammal Function
                                                                                         Hearing Groups
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                       Distance to marine mammal thresholds (in meters)
                                                                                             ---------------------------------------------------------------------------------------------------
                                                                                                                      Level A harassment (PTS onset)                          Level B harassment
               Activity                      Pile parameters             Approach used       --------------------------------------------------------------------------------    (behavioral)
                                                                                                  LFC (183 dB         MFC (185 dB         HFC (155 dB     PP (185 dB SELcum) -------------------
                                                                                                    SELcum)             SELcum)             SELcum)                            All (160 dB RMS)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Temporary Goal Posts..................  1.07 m diameter Steel      Impact Pile Driving......              590.9                21.0               703.8               316.2               1,450
                                         Pipe Piles.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds.

    Given the small distances to Level A harassment isopleths, Level A 
harassment incidental to this activity is not anticipated, even absent 
mitigation. Therefore, Dominion Energy is not requesting, and NMFS is 
no authorizing Level A harassment related to goal post installation. 
The acoustic ranges to the Level B harassment threshold, assuming no 
sound attenuation, were used to calculate the ensonified area around 
the cable landfall site. The Ensonified Area is calculated as the 
following:

Ensonified Area = pi x r2,

Where:

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

    To accurately account for the greatest level of impact (via 
behavioral harassment) to marine mammals, Tetra Tech applied the 
evaluated maximum Level B harassment distance (1,450 m) as the basis 
for determining potential takes. To get an accurate value of the total 
ensonified area within the aquatic environment, the isopleth was 
overlaid

[[Page 4412]]

on a map to determine if any truncation by land would occur due to the 
nearshore proximity of the goal posts. For the vibratory pile driving 
for temporary cofferdams associated with the sheet pile installation 
and removal, it was assumed that the daily ensonified area was 4.98 
km\2\ (1.92 mi\2\), or a total ensonified area of 268.92 km\2\ (103.83 
mi\2\) over 54 days of installation and removal. The daily ensonified 
area that resulted from this analysis (4.98 km\2\) was carried forward 
into the take estimates as the daily ensonified area.
    In the same approach as was undertaken by the temporary cofferdams, 
the greatest ensonified area was intersected with the density grid 
cells for each individual species to select all of those grid cells 
that the ensonified area intersects to estimate the marine mammal 
density relevant to the temporary goal posts. Maximum monthly densities 
(i.e., the maximum density found in each grid cell) were averaged by 
season. Since the timing of landfall construction activities may vary 
somewhat from the prepared schedule, the highest average seasonal 
density from May through October (Dominion Energy's planned 
construction period for temporary goal posts) for each species was 
selected and used to estimate exposures from temporary goal post 
installation. For some species where little density information is 
available (i.e., pilot whale spp, pantropical spotted dolphins), the 
annual density was used instead. Given overlap with the pinniped 
density models as the Roberts et al. (2023) dataset does not 
distinguish between some species, a collective ``pinniped'' density was 
used for both harbor and gray seal species and later split for the take 
estimates and request (Roberts et al., 2016). This approach was the 
same as described in the temporary cofferdams. Furthermore, given the 
densities are the same as what was calculated for temporary cofferdams, 
we refer the reader back to Table 13 above.
    To calculate exposures, the highest average seasonal marine mammal 
densities from Table 16 were multiplied by the daily ensonified area 
(4.98 km\2\) for installation and removal of steel pipe piles for 
temporary goal posts. Given that use of the impact hammer during goal 
post installation may occur at a rate of 2 pipe piles per day for a 
total of 54 days (based on 108 total steel pipe piles), the daily 
estimated take was multiplied by 54 to produce the results shown in 
Table 16. The product is then rounded, to generate an estimate of the 
total number of instances of harassment expected for each species over 
the duration of the work. Again, as previously noted, no take was 
calculated for the removal of goal posts due to the equipment planned 
for use.
    The take estimates for Level B harassment related to temporary goal 
post installation were then adjusted, for some species, based on group 
size characteristics known through the scientific literature and 
received sighting reports from previous projects and/or surveys. These 
group size estimates for temporary goal post installation are described 
below and were incorporated into the estimated take to yield the 
requested and authorized take estimate:
     Atlantic spotted dolphin: Adjusted based on 1 group size 
per day (20 per Dominion Energy, 2020; Jefferson et al., 2015);
     Bottlenose dolphin (Southern Migratory Coastal Stock): 
Adjusted based on 1 group size per day (15 per Jefferson et al., 2015); 
and
     Short-beaked common dolphin: Adjusted based on 1 group 
size per day (20 per Dominion Energy, 2021).
    Take by Level B harassment is authorized as a precaution assuming 2 
years of foundation installation, for Clymene dolphins, false killer 
whales, melon-headed whales, and pygmy sperm whales. Given the 
nearshore nature of cable landfall activities, no additional take (and 
therefore, no group size adjustments) has been authorized for temporary 
goal post installation and removal activities.
    Additionally, beyond group size adjustments, some slight 
modifications were performed for some species, including harbor seals, 
gray seals, short- and long-finned pilot whales, and bottlenose 
dolphins. More specifically, the takes requested were accrued based on 
a 50/50 split for both pinniped species, as the Roberts et al. (2023) 
data does not differentiate the density by specific pinniped species. 
The density for pilot whales represents a single group (Globicephala 
spp.) and is not species-specific. Due to the occurrence of both short-
finned and long-finned pilot whales in this area, the requested take 
was allocated to a collective group, although short-finned pilot whales 
are commonly seen in southern waters. Bottlenose dolphin stocks were 
split by the 20-m isobath cutoff, and then allocated specifically to 
the coastal stock of bottlenose dolphins (migratory southern coastal) 
due to the nearshore nature of these activities. Lastly, due to the 
size of the Level B harassment isopleth (1,450 m), Dominion Energy has 
planned a 1,500 m (1,640.4 ft) shutdown zone to exceed this distance. 
However, given the proximity to land, large whales are not anticipated 
to occur this close to nearshore activities. Because of the required 
mitigation zone and the nearshore location of the temporary goal posts, 
as well as the calculated exposures, which were less than 0.5, Dominion 
Energy has not requested, and NMFS has not authorized, takes for large 
whales (i.e., mysticetes and sperm whales).
    Below we present the estimated take and maximum amount of take 
authorized during temporary goal post installation during the 5-year 
effective period for the CVOW-C Project (Table 16). Take by Level A 
harassment was not requested by Dominion Energy, and it is not expected 
or authorized by NMFS. These authorized take estimates take into 
account 54 days total for temporary goal post activities, including 
installation and removal, at a rate of 2 steel pipe piles installed per 
day over 130 minutes.

 Table 16--Density-Based Exposures and Authorized Take by Level B Harassment From Impact Pile Driving Associated
                                      With Temporary Goal Post Installation
----------------------------------------------------------------------------------------------------------------
                                                                                  Density-based     Authorized
            Marine mammal species                            Stock                  exposures          take
----------------------------------------------------------------------------------------------------------------
                                                               Level B harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *.................  Western North Atlantic..........            0.065               0
Fin whale *..................................  Western North Atlantic..........            0.110               0
Humpback whale...............................  Gulf of Maine...................            0.145               0
Minke whale..................................  Canadian East Coast.............            0.333               0
Sei whale *..................................  Nova Scotia.....................            0.040               0
Sperm whale *................................  North Atlantic..................            0.003               0

[[Page 4413]]

 
Pygmy sperm whale............................  Western North Atlantic..........          \d\ n/a         \d\ n/a
Atlantic spotted dolphin.....................  Western North Atlantic..........            6.373             360
Atlantic white-sided dolphin \c\.............  Western North Atlantic..........            0.874               1
Bottlenose dolphin...........................  Southern Migratory Coastal......           45.862             270
                                               Western North Atlantic, Offshore          \a\ n/a         \a\ n/a
Clymene dolphin..............................  Western North Atlantic..........          \d\ n/a         \d\ n/a
Common dolphin...............................  Western North Atlantic..........            4.862             360
False killer whale...........................  Western North Atlantic..........          \d\ n/a         \d\ n/a
Melon-headed whale...........................  Western North Atlantic..........          \d\ n/a         \d\ n/a
Pilot whale spp..............................  Western North Atlantic..........            0.175               0
Pantropical spotted dolphin..................  Western North Atlantic..........            0.019               0
Risso's dolphin..............................  Western North Atlantic..........            0.081               0
Harbor porpoise..............................  Western North Atlantic..........            1.178               1
Gray seal \b\................................  Western North Atlantic..........            2.387               2
Harbor seal \b\..............................  Western North Atlantic..........            2.387               2
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Given temporary goal post installation would be confined to an area below the 20-m isobath, all of the
  estimated take has been allocated to the coastal stock.
\b\ The take request for pinnipeds was allocated to an even 50 percent split to each harbor seal and gray seal.
\c\ Atlantic white-sided dolphins are not expected, but due to shifts in habitat use, have been included in the
  take request based on a standard group size annually. We note that animat/exposure modeling was not done for
  this species.
\d\ Given take by Level B harassment was precautionarily authorized during two years of foundation installation
  for these species, no take has been calculated for cable landfall construction activities.

    We note that these would be the maximum number of animals that may 
be harassed during impact pile driving for nearshore temporary goal 
posts as the analysis conservatively assumes each exposure is a 
different animal. This is unlikely to be the case for all species shown 
here but is the most comprehensive assessment of the level of impact 
from this activity.

HRG Surveys

    Dominion Energy's HRG survey activities include the use of 
impulsive (i.e., boomers and sparkers) and non-impulsive (i.e., 
Compressed High Intensity Radiated Pulse (CHIRP) Sub-bottom Profilers 
(SBP)) sources (see Table 4 in the proposed rule (88 FR 28656, May 4, 
2023) for a representative list of the acoustic sources and their 
operational parameters). Authorized takes are by Level B harassment 
only, in the form of disruption of behavioral patterns for individual 
marine mammals resulting from exposure to noise from certain HRG 
acoustic sources. Based primarily on the characteristics of the signals 
produced by the acoustic sources planned for use, Level A harassment is 
neither anticipated, even absent mitigation, nor authorized. 
Consideration of the anticipated effectiveness of the mitigation 
measures (i.e., pre-start clearance and shutdown measures), discussed 
in detail below in the Mitigation section, further strengthens the 
conclusion that Level A harassment is not a reasonably expected outcome 
of the survey activity. Therefore, the potential for Level A harassment 
is not evaluated further in this document. Dominion Energy did not 
request, and NMFS is not authorizing, take by Level A harassment 
incidental to HRG surveys. Please see Dominion Energy's application for 
the CVOW-C Project for details of a quantitative exposure analysis 
(i.e., calculated distances to Level A harassment isopleths and Level A 
harassment exposures). No serious injury or mortality is anticipated to 
result from HRG survey activities.
    Specific to HRG surveys, in order to better consider the narrower 
and directional beams of the sources, NMFS has developed a tool for 
determining the sound pressure level (SPLrms) at the 160-dB 
isopleth for the purposes of estimating the extent of Level B 
harassment isopleths associated with HRG survey equipment (NMFS, 2020). 
This methodology incorporates frequency-dependent absorption and some 
directionality to refine estimated ensonified zones. Tetra Tech used 
NMFS' methodology with additional modifications to incorporate a 
seawater absorption formula and account for energy emitted outside of 
the primary beam of the source. For sources that operate with different 
beamwidths, the maximum beam width was used, and the lowest frequency 
of the source was used when calculating the frequency-dependent 
absorption coefficient (see Table 4 in the proposed rule (88 FR 28656, 
May 4, 2023)).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate ranges to the Level A harassment and 
Level B harassment isopleths. In cases when the source level for a 
specific type of HRG equipment is not provided in Crocker and 
Fratantonio (2016), NMFS recommends that either the source levels 
provided by the manufacturer be used, or, in instances where source 
levels provided by the manufacturer are unavailable or unreliable, a 
proxy from Crocker and Fratantonio (2016) be used instead. Tetra Tech 
utilized the following criteria for selecting the appropriate inputs 
into the NMFS User Spreadsheet Tool (NMFS, 2018):
    (1) For equipment that was measured in Crocker and Fratantonio 
(2016), the reported source level for the most likely operational 
parameters was selected.
    (2) For equipment not measured in Crocker and Fratantonio (2016), 
the best available manufacturer specifications were selected. Use of 
manufacturer

[[Page 4414]]

specifications represent the absolute maximum output of any source and 
do not adequately represent the operational source. Therefore, they 
should be considered an overestimate of the sound propagation range for 
that equipment.
    (3) For equipment that was not measured in Crocker and Fratantonio 
(2016) and did not have sufficient manufacturer information, the 
closest proxy source measured in Crocker and Fratantonio (2016) was 
used.
    The Geo Marine sparker measurements and specifications were 
provided by the manufacturer. Crocker and Fratantonio (2016) provide S-
Boom measurements using two different power sources (CSP-D700 and CSP-
N). The CSP-D700 power source was used in the 700 joules (J) 
measurements but not in the 1,000 J measurements. The CSP-N source was 
measured for both 700 J and 1,000 J operations but resulted in a lower 
source level; therefore, the single maximum source level value was used 
for both operational levels of the S-Boom.
    Table 17 identifies all the representative survey equipment that 
operates below 180 kHz (i.e., at frequencies that are audible and have 
the potential to disturb marine mammals) that may be used in support of 
planned survey activities and are likely to be detected by marine 
mammals given the source level, frequency, and beamwidth of the 
equipment. This table also provides all operating parameters used to 
calculate the distances to threshold for marine mammals.

   Table 17--Summary of Representative HRG Survey Equipment With Operating Parameters To Calculate Harassment
                                          Distances for Marine Mammals
----------------------------------------------------------------------------------------------------------------
                                                                                                   Source level
                                                                                     Operating    (SLRMS) (dB re
           Equipment classification                     Survey equipment             frequency       1[mu]Pa)
                                                                                       (kHz)
----------------------------------------------------------------------------------------------------------------
Multibeam Echosounder.........................  R2Sonics 2026...................         170-450             191
Synthetic Aperture Sonar, combined bathymetric/ Kraken Aquapix \a\..............             337             N/A
 sidescan.
Sidescan Sonar................................  Edgetech 4200 dual frequency \a\     300 and 600             N/A
Parametric SBP................................  Innomar SES-2000 Medium 100.....            2-22             241
Non-Parametric SBP............................  Edgetech 216 CHIRP..............            2-16             193
                                                Edgetech 512 CHIRP..............          0.5-12             177
Medium Penetration SBP........................  Geo Marine Dual 400 Sparker 800           0.25-4             200
                                                 J \b\.
                                                Applied Acoustics S-Boom (Triple         0.5-3.5             203
                                                 Plate Boomer 1000 J).
----------------------------------------------------------------------------------------------------------------
Note: dB re 1 [micro]Pa m--decibels referenced to 1 MicroPascal at 1 meter; kHz--kilohertz.
\a\ Operating frequencies are above marine mammal hearing thresholds.
\b\ Source levels for the GeoMarine Dual 400 Sparker (800 J) were provided by the manufacturer for the stacked
  400 tip configuration.

    Results of modeling using the methodology described above indicated 
that, of the HRG equipment planned for use by Dominion Energy that has 
the potential to result in Level B harassment of marine mammals, sound 
produced by the GeoMarine Dual 400 sparker would propagate furthest to 
the Level B harassment isopleth (100 m (328 ft); Table 17). For the 
purposes of take estimation, it was conservatively assumed that sparker 
would be the dominant acoustic source for all survey days (although, 
again, this may not always be the case). Thus, the range to the 
isopleth corresponding to the threshold for Level B harassment and the 
boomer and sparkers (100 m) were used as the basis of take calculations 
for all marine mammals. This is a conservative approach, as the actual 
sources used on individual survey days, or during a portion of a survey 
day, may produce smaller distances to the Level B harassment isopleth.

     Table 18--Summary of Representative HRG Survey Equipment Distances to the Level B Harassment Threshold
----------------------------------------------------------------------------------------------------------------
                                                                                        Distance (m) to Level B
            Equipment classification                       Survey equipment              harassment threshold
----------------------------------------------------------------------------------------------------------------
Multibeam Echosounder...........................  R2Sonics 2026.....................                         0.3
Synthetic Aperture Sonar, combined bathymetric/   Kraken Aquapix \a\................                         N/A
 sidescan.
Sidescan Sonar..................................  Edgetech 4200 dual frequency \a\..                         N/A
Parametric SBP..................................  Innomar SES-2000 Medium 100.......                         0.7
Non-Parametric SBP..............................  Edgetech 216 CHIRP................                        10.2
                                                  Edgetech 512 CHIRP................                         2.4
Medium Penetration SBP..........................  Geo Marine Dual 400 Sparker 800 J.                       100.0
                                                  Applied Acoustics S-Boom (Triple                          21.9
                                                   Plate Boomer 1000 J).
----------------------------------------------------------------------------------------------------------------
Note: dB re 1 [micro]Pa m--decibels referenced to 1 MicroPascal at 1 meter; kHz--kilohertz.
\a\ Operating frequencies are above marine mammal hearing thresholds.

    To estimate densities for the HRG surveys occurring both within the 
Lease Area and within the Export Cable Routes for the CVOW-C Project 
based on the Roberts et al. (2023) dataset the relevant density models 
using GIS (ESRI, 2017) were overlaid to the CVOW-C Project Area. The 
boundary of the CVOW-C HRG Project Area corresponds to the Lease Area 
and Export Cable Routes, for which the area was not increased due to an 
additional

[[Page 4415]]

perimeter, as was done for foundation installation. For each survey 
segment, the average densities (i.e., the average density of each grid 
cell) were averaged by season over the survey duration (spring, summer, 
fall, and winter) for the entire HRG survey area. The average seasonal 
density within the HRG survey area was then selected for inclusion into 
the take calculations. Refer to Table 20 for the densities used for HRG 
surveys.
    As previously stated, of the HRG equipment planned for use by 
Dominion Energy that has the potential to result in Level B harassment 
of marine mammals, sound produced by the GeoMarine Dual 400 sparker 
would propagate furthest to the Level B harassment isopleth (100 m). 
This maximum range to the Level B harassment threshold and the 
estimated trackline distance traveled per day by a given survey vessel 
(i.e., 58 km (36 mi); Table 19), assuming a travel speed of 1.3 kn 
(1.49 miles per hour), were then used to calculate the daily ensonified 
area, or zone of influence (ZOI) around the survey vessel.

   Table 19--Survey Durations and Daily/Annual Trackline Distances Planned To Occur During the CVOW-C Project
----------------------------------------------------------------------------------------------------------------
                                                                    Number of        Estimated
             Survey year                    Survey segment        active survey    distances per    Annual line
                                                                   vessel days       day (km)       kilometers
----------------------------------------------------------------------------------------------------------------
2024.................................  Pre-lay surveys.........               65              58           3,770
2025.................................  As-built surveys and pre-             249                          14,442
                                        lay surveys.
2026.................................  As-built surveys........               58                           3,364
2027.................................  Post-construction                     368                          21,344
                                        surveys.
2028.................................  Post-construction                     368                          21,344
                                        surveys.
----------------------------------------------------------------------------------------------------------------

    The ZOI is a representation of the maximum extent of the ensonified 
area around a HRG sound source over a 24-hr period. The ZOI for each 
piece of equipment operating at or below 180 kHz was calculated per the 
following formula:

Mobile Source ZOI = (Distance/day x 2r) + pi x r2

Where:

Distance/day is the maximum distance a survey vessel could travel in 
a 24-hour period; and
r is the linear distance from the source to the harassment 
threshold.

    The largest daily ZOI (111.6 km\2\ (4.48 mi\2\)), associated with 
the use of the sparker, was applied to all planned survey days.
    As previously described, this assumes a total length of surveys 
that will occur within the CVOW-C Project Area as 64,264 km\2\ 
(24,812.5 mi\2\). As Dominion Energy is not sure of the exact 
geographic locations of the survey effort, these values cannot 
discreetly be broken up between the Lease Area and the Export Cable 
Routes. However, the values presented in Table 19 provide a 
comprehensive accounting of the total annual survey effort anticipated 
to occur.
    For HRG surveys, density data from Roberts et al. (2023) were 
mapped within the boundary of the CVOW-C Project Area using GIS 
software (ESRI, 2017). The boundary of the CVOW-C HRG Project Area 
corresponds to the Lease Area and Export Cable Routes, for which the 
area was not increased due to an additional perimeter, as was done for 
foundation installation. For each survey segment, the average densities 
(i.e., the average density of each grid cell) were averaged by season 
over the survey duration (spring, summer, fall, and winter) for the 
entire HRG survey area. The average seasonal density within the HRG 
survey area was then selected for inclusion into the take calculations. 
The potential Level B density-based harassment exposures are estimated 
by multiplying the average seasonal density of each species within the 
survey area by the daily ZOI. That product was then multiplied by the 
number of planned survey days in each sector during the approximately 
5-year construction timeframe (refer back to Table 19) and the product 
was rounded to the nearest whole number. As described above, this is a 
reasonable, but conservative estimate as it assumes the HRG source that 
results in the greatest isopleth distance to the Level B harassment 
threshold would be operated at all times during the entire survey, 
which may not ultimately occur. These density values are found in Table 
20.

              Table 20--Highest Average Seasonal Marine Mammal Densities for HRG Survey Activities
----------------------------------------------------------------------------------------------------------------
                                                                                             Highest average
             Marine mammal species                                Stock                      seasonal density
                                                                                          (individual/100 km\2\)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *...................  Western North Atlantic................                    0.095
Fin whale *....................................  Western North Atlantic................                    0.080
Humpback whale.................................  Gulf of Maine.........................                    0.103
Minke whale....................................  Canadian East Coast...................                    0.344
Sei whale *....................................  Nova Scotia...........................                    0.038
Sperm whale *..................................  North Atlantic........................                    0.002
Pygmy sperm whale..............................  Western North Atlantic................                  \a\ n/a
Atlantic spotted dolphin.......................  Western North Atlantic................                    4.649
Atlantic white-sided dolphin...................  Western North Atlantic................                    0.678
Bottlenose dolphin.............................  Combined Southern Migratory Coastal,                     24.157
                                                  Western North Atlantic Offshore.
Clymene dolphin................................  Western North Atlantic................                  \a\ n/a
Common dolphin.................................  Western North Atlantic................                    6.599
False killer whale.............................  Western North Atlantic................                  \a\ n/a
Melon-headed whale.............................  Western North Atlantic................                  \a\ n/a
Pilot whale spp................................  Western North Atlantic................                    0.065
Pantropical spotted dolphin....................  Western North Atlantic................                    0.007

[[Page 4416]]

 
Risso's dolphin................................  Western North Atlantic................                    0.057
Harbor porpoise................................  Western North Atlantic................                    1.477
Gray seal......................................  Western North Atlantic................                    5.402
Harbor seal....................................  Western North Atlantic................                    5.402
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ This species was incorporated after the animat analysis was completed so no take was estimated. Instead, a
  standard group size of animals was used instead for any analysis pertaining to this species.

    For most species or species groups, monthly densities are 
available, though in some cases insufficient data are available or we 
are unable to differentiate species groups by individual genus (e.g., 
gray and harbor seals). In these situations, additional adjustments are 
necessary and are described here. For pinnipeds, the density values 
derived from the Roberts et al. (2023) data were considered unrealistic 
given a reduced occurrence near the CVOW-C Project Area in the summer 
(Hayes et al., 2021). Based on information found in Hayes et al. 
(2021), a conservative density estimate of 0.00001 animals/km\2\ was 
used to represent the summer density of both pinniped species within 
the modeled CVOW-C Project Area and Lease Area plus the 8.9 km 
perimeter. Any take by Level B harassment derived from these densities 
would be further split by an even percentage (50/50) for each species. 
For bottlenose dolphins, due to specific environmental characteristics 
that were used to partition the Southern Migratory Coastal and Western 
North Atlantic Offshore stocks, both the coastal and the offshore 
stocks were divided based on the location of the 20-m isobath. 
Information by Hayes et al. (2021) indicates a boundary between the two 
stocks at the 20-m isobath located north of Cape Hatteras, North 
Carolina. Therefore, all bottlenose dolphins whose grid cells were less 
than the 20-m isobath in the CVOW-C modeling area or within the 8.9 km 
of the Lease Area were allocated to the Southern Migratory Coastal 
stock. All density grid cells greater than the 20-m isobath from the 
CVOW-C modeling area or within the 8.9 km of the Lease Area were 
allocated to the offshore stock. The number of marine mammals expected 
to be incidentally taken per day is then calculated by estimating the 
number of each species predicted to occur within the daily ensonified 
area (animals/km\2\), incorporating the maximum seasonal estimated 
marine mammal densities as described above. Estimated numbers of each 
species taken per day across all survey sites are then multiplied by 
the total number of survey days annually. The product is then rounded, 
to generate an estimate of the total number of instances of harassment 
expected for each species over the duration of the survey. A summary of 
this method is illustrated in the following formula:

Estimated Take = D x ZOI x # of days

Where:

D is the average seasonal density for each species; and
ZOI is the maximum daily ensonified area to the harassment 
threshold.

    The take estimates were then adjusted, for some species, based on 
group size and sighting reports from previous projects and/or surveys. 
These group size estimates for HRG surveys are described below and were 
incorporated into the estimated take to yield the requested and 
authorized take estimate:
     Atlantic white-sided dolphin: Adjusted based on 1 group 
size per year (15 per Reeves et al., 2002);
     Risso's dolphin: Adjusted based on 1 group size per year 
(25 per Dominion Energy, 2021; Jefferson et al., 2015);
     Bottlenose dolphin (Combined Southern Migratory Coastal, 
Western North Atlantic Offshore): Adjusted based on 1 group size per 
day (15 per Jefferson et al., 2015);
     Pantropical spotted dolphins: Adjusted based on 1 group 
size per day (20 individuals);
     Common dolphins: Adjusted based on 1 group size per day 
(20 individuals);
     Common dolphins: Adjusted based on 1 group size per year 
(20 individuals); and
     Pilot whale spp.: Adjusted based on 1 group size per year 
(20 individuals).
    Given the very small zone sizes associated with HRG surveys and the 
lower density/occurrence of these species, no take in addition to that 
already authorized for foundation installation (which has much larger 
acoustic ranges) has been authorized for the following species: false 
killer whales, melon-headed whales, Clymene dolphins, and pygmy sperm 
whales. Similar to other activities, the density-based exposure 
estimates were adjusted due to the manner in which density data is 
presented in the Duke models for harbor seals, gray seals, short- and 
long-finned pilot whales, and bottlenose dolphins. More specifically, 
the takes requested were split 50/50 for both pinniped species, as the 
Roberts et al. (2023) data does not differentiate the density by 
specific pinniped species. The density for pilot whales represents a 
single group (Globicephala spp.) and is not species-specific. Due to 
the occurrence of both short-finned and long-finned pilot whales in 
this area, the requested take was allocated to a collective group, 
although short-finned pilot whales are commonly seen in southern 
waters. Due to a reduced spatial resolution at the current state of the 
survey planning, bottlenose dolphin stocks were combined into a single 
group for both the coastal stock of bottlenose dolphins (Migratory 
Southern Coastal) and the offshore stock (Western North Atlantic 
Offshore).
    Below we present the maximum amount of take authorized during HRG 
surveys occurring during the 5-year effective period for the CVOW-C 
Project (Table 21). Take by Level A harassment was not requested by 
Dominion Energy, and it is neither expected nor authorized by NMFS. We 
note that these would be the maximum number of animals that may be 
harassed during HRG surveys as the analysis conservatively assumes each 
exposure is a different animal. This is unlikely to be the case for all 
species shown here but is the most comprehensive assessment of the 
level of impact from this activity.
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BILLING CODE 3510-22-C

Total Authorized Takes Across All Specified Activities

    The number of Level A harassment and Level B harassment takes 
authorized during WTG and OSS foundation installation, cable landfall 
construction, and HRG surveys are presented in Table 22. The mitigation 
and monitoring measures provided in the Mitigation and Monitoring and 
Reporting sections are activity-specific and are designed to minimize, 
to the extent practicable, acoustic exposures to marine mammal species.
    The take numbers NMFS is authorizing (Tables 22 and 23) are 
considered the maximum number that could occur for the following key 
reasons:
     The authorized take accounts for 183 pile driving events 
when only 176 foundations may be installed. It could be that no piles 
will require the need to be re-driven.
     The amount of Level A harassment authorized considered the 
maximum of up to two monopiles per day being installed and used 
acoustic ranges that do not account for animal movement.
     The number of authorized takes by Level A harassment does 
not account for the likelihood that marine mammals will avoid a 
stimulus when possible before the individual accumulates enough 
acoustic energy to potentially cause auditory injury.
     All take estimates assumed all piles are installed in the 
month with the highest average seasonal and/or annual densities for 
each marine mammal species and/or stock based on the construction 
schedule.
     Dominion Energy assumed the maximum number of temporary 
cofferdams (up to 9) and goal posts (up to 108) would be installed 
when, during construction, fewer piles may be installed and, in the 
case of cofferdams, may not be installed at all (Dominion Energy may 
use a gravity-cell structure in lieu of cofferdams which would not 
generate noise levels that would result in marine mammal harassment).
     The number of authorized takes by Level B harassment does 
not account for the effectiveness of the required mitigation and 
monitoring measures for any species, with the exception of spatio-
temporal restrictions on pile driving (i.e., no foundation pile driving 
from November 1st through April 30th, annually and no foundation pile 
driving may start during nighttime), and the required use of a noise 
attenuation device (at least a double bubble curtain; 10 dB of sound 
attenuation).
    The Year 1 authorized take includes HRG surveys, vibratory and 
impact installation of WTG and OSS foundations, the impact installation 
and removal of temporary goal posts, and the vibratory installation and 
removal of temporary cofferdams. Year 2 includes HRG surveys and the 
vibratory and impact installation of WTG and OSS foundations. Years 3, 
4, and 5 each include HRG surveys only. Dominion Energy has noted that 
Year 3 and Year 4 may include some installation of foundation piles for 
WTGs if they fall behind their construction schedule. However, if this 
occurs, this would just reduce the number of WTGs installed in Year 2. 
Exact durations for HRG surveys in each construction are not given 
although estimates are provided above and are repeated here: 65 days in 
2024, 249 days in 2025, 58 days in 2026, and 368 days in each of 2027 
and 2028. These estimates are based on the effort of two concurrently 
operating survey vessels.
    Table 22 shows the authorized take of each species for each year 
based on the planned activities. Tables 23 and 24 show the total 
authorized take over 5 years and the maximum take authorized in any one 
year, respectively.
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    In making the negligible impact determination, NMFS assesses both 
the greatest number of authorized takes of each marine mammal species 
or stocks that could occur within any one year, which in the case of 
this rule is based on the predicted take in either Year 1 (2024) or 
Year 2 (2025), and the total taking of each marine mammal species or 
stock during the five-year effective period of the rule. In this 
calculation, the maximum estimated number of Level A harassment takes 
in any one year is summed with the maximum estimated number of Level B 
harassment takes in any one year for each species to yield the highest 
number of estimated takes that could occur in any year. We recognize 
that certain activities could shift within the 5-year effective period 
of the rule; however, the rule allows for that flexibility and the 
takes are not expected to exceed those shown in Table 24 in any one 
year.

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BILLING CODE 3510-22-C

Mitigation

    As described in the Changes From the Proposed to Final Rule 
section, we have made changes to some mitigation measures since the 
proposed rule. These changes are described in detail in the sections 
below and, otherwise, the mitigation requirements have not changed 
since the proposed rule.
    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, personnel safety, practicality of implementation, and, in 
the case of a military readiness activity, 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 
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 harassment might occur.
    Generally speaking, the mitigation measures considered and required 
here fall into three categories: spatio-temporal (seasonal and daily) 
work restrictions, real-time measures (shutdown, clearance, and vessel 
strike avoidance), and noise attenuation/reduction measures. Spatio-
temporal restrictions, such as 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. Such restrictions 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 specified activities 
and then we describe the measures that apply to specific specified 
activities (i.e., foundation installation, nearshore installation and 
removal activities for cable laying, and HRG surveys). Specific 
requirements can be found in Section 217.294 (Mitigation requirements) 
as found in Part 217--Regulations Governing The Taking And Importing Of 
Marine Mammals at the end of this rulemaking.

Training and Coordination

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

North Atlantic Right Whale Awareness Monitoring

    Dominion Energy must use available sources of information on North 
Atlantic right whale presence, including daily monitoring of the Right 
Whale Sightings Advisory System, monitoring of U.S. Coast Guard very 
high frequency (VHF) Channel 16 throughout each day to receive 
notifications of any sightings, and information associated with any 
regulatory management actions (e.g., establishment of a zone 
identifying the need to reduce vessel speeds). Maintaining daily 
awareness and coordination affords increased protection of North 
Atlantic right whales by understanding North Atlantic right whale 
presence in the area through ongoing visual and passive acoustic 
monitoring efforts and opportunities (outside of Dominion Energy's 
efforts),

[[Page 4431]]

and allows for planning of construction activities, when practicable, 
to minimize potential impacts on North Atlantic right whales.

Vessel Strike Avoidance Measures

    This final rule contains numerous vessel strike avoidance measures 
that reduce the risk that a vessel and marine mammal could collide. 
While the likelihood of a vessel strike is generally low, they are one 
of the most common ways that marine mammals are seriously injured or 
killed by human activities. Therefore, enhanced mitigation and 
monitoring measures are required to avoid vessel strikes to the extent 
practicable. While many of these measures are proactive intending to 
avoid the heavy use of vessels during times when marine mammals of 
particular concern may be in the area, several are reactive and occur 
when a project personnel sights a marine mammal. The mitigation 
requirements are described generally here and in detail in the 
regulation text at the end of this final rule (see 50 CFR 217.294(b)). 
Dominion Energy will be required to comply with these measures except 
under circumstances when doing so would create an imminent and serious 
threat to a person or vessel or to the extent that a vessel is unable 
to maneuver and because of the inability to maneuver, the vessel cannot 
comply.
    While underway, Dominion Energy is required to monitor for and 
maintain a minimum separation distance from marine mammals and operate 
vessels in a manner that reduces the potential for vessel strike. 
Regardless of the vessel's size, all vessel operators, crews, and 
dedicated visual observers (i.e., PSO or trained crew member) must 
maintain a vigilant watch for all marine mammals and slow down, stop 
their vessel, or alter course (as appropriate) to avoid striking any 
marine mammal. The dedicated visual observer, equipped with suitable 
monitoring technology (e.g., binoculars, night vision devices), must be 
located at an appropriate vantage point for ensuring vessels are 
maintaining required vessel separation distances from marine mammals 
(e.g., 500 m from North Atlantic right whales).
    All project vessels, regardless of size, must maintain the 
following minimum separation zones: 500 m from North Atlantic right 
whales; 100 m from sperm whales and non-North Atlantic right whale 
baleen whales; and 50 m from all delphinid cetaceans and pinnipeds (an 
exception is made for those species that approach the vessel (i.e., 
bow-riding dolphins)). If any of these species are sighted within their 
respective minimum separation zone, the underway vessel must shift its 
engine to neutral and the engines must not be engaged until the 
animal(s) has 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 
(11.5078 miles per hour (mph)). 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 shift engines into neutral. The 
vessel shall remain in neutral until the North Atlantic right whale has 
moved beyond 500 m and the 10 kn speed restriction will remain in 
effect as outlined in 50 CFR 217.294(b).
    All of the project-related vessels are required to comply with 
existing NMFS vessel speed restrictions for North Atlantic right whales 
and the measures within this rulemaking for operating vessels around 
North Atlantic right whales and other marine mammals. When NMFS vessel 
speed restrictions are not in effect and a vessel is traveling at 
greater than 10 kn, in addition to the required dedicated visual 
observer, Dominion Energy is required to monitor the crew transfer 
vessel transit corridor (the path crew transfer vessels take from port 
to any work area) in real-time with PAM prior to and during transits. 
To maintain awareness of North Atlantic right whale presence, vessel 
operators, crew members, and the marine mammal monitoring team would 
monitor U.S. Coast Guard VHF Channel 16, WhaleAlert, the Right Whale 
Sighting Advisory System (RWSAS), and the PAM system. Any marine mammal 
observed by project personnel must be immediately communicated to any 
on-duty PSOs, PAM operator(s), and all vessel captains. Any North 
Atlantic right whale or large whale observation or acoustic detection 
by PSOs or PAM operators must be conveyed to all vessel captains.
    All vessels would be equipped with an AIS and Dominion Energy must 
report all MMSI numbers to NMFS Office of Protected Resources prior to 
initiating in-water activities. Dominion Energy would submit a NMFS-
approved North Atlantic Right Whale Vessel Strike Avoidance Plan at 
least 180 days prior to commencement of vessel use. Dominion Energy's 
compliance with these measures will reduce the likelihood of vessel 
strike to the extent practicable. These measures increase awareness of 
marine mammals in the vicinity of project vessels and require project 
vessels to reduce speed when marine mammals are detected (by PSOs, PAM, 
and/or through another source, e.g., RWSAS) and maintain separation 
distances when marine mammals are encountered. While visual monitoring 
is useful, reducing vessel speed is one of the most effective, feasible 
options available to reduce the likelihood of and effects from a vessel 
strike. Numerous studies have indicated that slowing the speed of 
vessels reduces the risk of lethal vessel collisions, particularly in 
areas where right whales are abundant and vessel traffic is common and 
otherwise traveling at high speeds (Vanderlaan and Taggart, 2007; Conn 
and Silber, 2013; Van der Hoop et al., 2014; Martin et al., 2015; Crum 
et al., 2019).

Seasonal and Daily Restrictions

    Spatio-temporal work restrictions in places where marine mammals 
are concentrated, engaged in biologically important behaviors, and/or 
present in sensitive life stages are effective measures for reducing 
the magnitude and severity of human impacts. Seasonal work restrictions 
provide additional benefit for marine mammals during periods where 
there could be higher occurrence or presence in the Project Area and 
specified geographic area. Dominion Energy proposed, and NMFS is 
requiring, seasonal work restrictions to minimize the risk of noise 
exposure to North Atlantic right whales incidental to certain specified 
activities to the extent practicable. These seasonal work restrictions 
are expected to greatly reduce the number of takes of North Atlantic 
right whales. These seasonal restrictions also afford protection to 
other marine mammals that are known to use the Project Area with 
greater frequency from November 1st through April 30th, including other 
baleen whales.
    As described previously, Dominion Energy proposed, and NMFS is 
requiring, that no foundation pile driving activities occur November 
1st through April 30th. Dominion Energy has planned to construct the 
cofferdams and goal posts from May 1st through October 31st within the 
first year 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 associated impacts to marine mammals. 
Although North Atlantic right whales do migrate in coastal waters, they 
do not typically migrate very close to shore off of Virginia and/or 
within Virginia nearshore environments where work would be

[[Page 4432]]

occurring. Given the distance to the Level B harassment isopleth is 
conservatively modeled at approximately 3.1 km (vibratory pile driving 
for cofferdams) and 1.5 km (impact pile driving of goal posts), any 
exposure to pile driving during cofferdams and goal posts installation 
would be at levels closer to the 120-dB Level B harassment threshold 
and not at louder source levels. NMFS is not adding seasonal 
restrictions to HRG surveys given the limited duration in which survey 
effort would occur (i.e., 65 days in 2024; 249 days in 2025; 58 days in 
2026; and 368 days in each of 2027 and 2028 (assuming each day an 
individual vessel is operating constitutes a day of vessel effort)) and 
the limited impacts expected from HRG surveys on marine mammals.
    North Atlantic right whales may be present in and around the 
Project Area throughout the year (e.g., Davis et al., 2017; Roberts et 
al., 2023; Salisbury et al., 2015). However, it would not be 
practicable to restrict foundation pile driving year-round. 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 densities starting to increase in November and taper off in 
May. To further ensure impacts to North Atlantic right whales are 
minimized, Dominion Energy proposed, and NMFS is carrying forward in 
this final rule, a requirement to not install foundations in November. 
Specifically, during Dominion Energy's planned foundation pile driving 
window, May represents the highest density period of North Atlantic 
right whales, even though it is relatively low when compared to other 
high-density months.
    As described previously, no foundation pile driving activities may 
occur November 1st through April 30th. Dominion Energy has planned to 
construct the cofferdams and goal posts from May 1st through October 
31st within the first year 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 associated impacts to 
marine mammals. Although North Atlantic right whales do migrate in 
coastal waters, they do not typically migrate very close to shore off 
of Virginia and/or within Virginia nearshore environments where work 
would be occurring. Given the distance to the Level B harassment 
isopleth is conservatively modeled at approximately 3.1 km (vibratory 
pile driving for cofferdams) and 1.5 km (impact pile driving of goal 
posts), any exposure to pile driving during cofferdams and goal posts 
installation would be at levels closer to the 120-dB Level B harassment 
threshold and not at louder source levels. NMFS is not adding seasonal 
restrictions to HRG surveys; however, Dominion Energy would only 
perform a predetermined amount of 24-hour survey effort for a specific 
number of days within specific years (i.e., 65 days in 2024; 249 days 
in 2025; 58 days in 2026; and 368 days in each of 2027 and 2028 
(assuming each day an individual vessel is operating constitutes a day 
of vessel effort)).
    NMFS is also requiring spatio-temporal restrictions for some 
activities. Within any 24-hour period, Dominion Energy would be limited 
to installing a maximum of two monopile WTG foundations (one standard 
and one hard-to-drive) or two pin piles for OSS jacket foundations, 
although some days Dominion Energy would only install one monopile 
foundation for WTGs. NMFS notes that Dominion Energy did not request to 
initiate foundation pile driving during nighttime hours. Because of 
this, Dominion Energy would only initiate foundation pile driving 
(inclusive of both vibratory and impact) during daylight hours within 
their specific pile driving window (i.e., May 1st through October 
31st), defined as no earlier than 1 hour after civil sunrise and no 
later than 1.5 hours before civil sunset. Because of this, no nighttime 
pile driving (defined as pile driving beginning after defined nighttime 
hours) is expected to occur during the effective period of the rule. 
However, Dominion Energy may continue pile driving after dark if 
installation of the same pile began during daylight hours (i.e., 1.5 
hours before civil sunset). In either situation, Dominion Energy would 
still need to adequately monitor all relevant zones to ensure the most 
effective mitigative actions are being undertaken, in alignment with an 
Alternative Monitoring Plan that would be submitted to NMFS for 
approval prior to foundation pile driving beginning. This Plan would be 
made public on NMFS' website upon approval. Subsequent monitoring 
reports submitted by Dominion Energy will allow NMFS to continue to 
evaluate the efficacy of the technologies and methodologies and to 
initiate adaptive management approaches, if necessary. We also continue 
to encourage Dominion Energy to further investigate and test advanced 
technology detection systems.
    Any and all vibratory pile driving associated with cofferdams and 
goal posts installation and removal would only be able to occur during 
daylight hours. Lastly, given the very small Level B harassment zone 
associated with HRG survey activities and no anticipated or authorized 
Level A harassment, NMFS is not requiring any daily restrictions for 
HRG surveys.
    More information on activity-specific seasonal and daily 
restrictions can be found in the regulatory text at the end of this 
rulemaking.

Noise Abatement Systems

    Dominion Energy is required to employ NAS, also known as noise 
attenuation systems, during all foundation installation (inclusive of 
vibratory and impact pile driving) to reduce the sound pressure levels 
that are transmitted through the water in an effort to reduce ranges to 
acoustic thresholds and minimize, to the extent practicable, any 
acoustic impacts resulting from these activities. 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

[[Page 4433]]

as well as differences in site conditions and difficulty in properly 
installing and operating in-water attenuation devices. D[auml]hne et 
al. (2017) found that single bubble curtains that reduce sound levels 
by 7 to 10 dB reduced the overall sound level by approximately 12 dB 
when combined as a double bubble curtain for 6-m steel monopiles in the 
North Sea. During installation of monopiles (consisting of 
approximately 8-m in diameter) for more than 150 WTGs in comparable 
water depths (>25 m) and conditions in Europe indicate that attenuation 
of 10 dB is readily achieved (Bellmann, 2019; Bellmann et al., 2020) 
using single big bubble curtains for noise attenuation. As a double 
bubble curtain is required to be used (noting a single bubble curtain 
is not allowed), Dominion Energy is required to maintain numerous 
operational performance standards. These standards are defined in the 
regulatory text at the end of this rulemaking, and include, but are not 
limited to, construction contractors must train personnel in the proper 
balancing of airflow to the bubble ring and Dominion Energy must submit 
a performance test and maintenance report to NMFS within 72 hours 
following the performance test. Corrections to the attenuation device 
to meet regulatory requirements must occur prior to use during 
foundation installation activities. In addition, a full maintenance 
check (e.g., manually clearing holes) must occur prior to each pile 
being installed. If Dominion Energy uses a noise mitigation device in 
addition to a double bubble curtain, similar quality control measures 
are required.
    Dominion Energy is required to use at least a double bubble 
curtain. Should the research and development phase of newer systems 
demonstrate effectiveness, as part of adaptive management, Dominion 
Energy may submit data on the effectiveness of these systems and 
request approval from NMFS to use them during foundation installation 
activities.
    Dominion Energy is required to submit an SFV plan to NMFS for 
approval at least 180 days prior to installing foundations. They are 
also required to submit interim and final SFV data results to NMFS and 
make corrections to the noise attenuation systems in the case that any 
SFV measurements demonstrate noise levels are above those modeled, 
assuming 10 dB. These frequent and immediate reports allow NMFS to 
better understand the sound fields to which marine mammals are being 
exposed and require immediate corrective action should they be 
misaligned with anticipated noise levels within our analysis.
    Noise abatement devices are not required during HRG surveys, 
cofferdam (sheet pile) installation and removal, and goal post (pipe 
pile) installation and removal. Regarding cofferdam sheet pile and goal 
post pipe pile installation and removal, NAS is not practicable to 
implement due to the physical nature of linear sheet piles and angled 
pipe piles and here is a 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 Dominion Energy is required to make 
efforts to minimize source levels by using the lowest energy settings 
on equipment that has the potential to result in harassment of marine 
mammals (e.g., sparkers, CHIRPs, 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 required (e.g., noise abatement, turning off power) will 
effect the least practicable adverse impact on marine mammals.

Clearance and Shutdown Zones

    NMFS requires the establishment of both clearance and, where 
technically feasible, shutdown zones during project activities that 
have the potential to result in harassment of marine mammals. The 
purpose of ``clearance'' of a particular zone is to minimize potential 
instances of auditory injury and more severe behavioral disturbances by 
delaying the commencement of an activity if marine mammals are near the 
activity. The purpose of a shutdown is to prevent a specific acute 
impact, such as auditory injury or severe behavioral disturbance of 
sensitive species, by halting the activity.
    All relevant clearance and shutdown zones during project activities 
would be monitored by NMFS-approved PSOs and/or PAM operators (as 
described in the regulatory text at the end of this rulemaking). At 
least one PAM operator must review data from at least 24 hours prior to 
any foundation installation and must actively monitor hydrophones for 
60 minutes prior to commencement of these activities. Any sighting or 
acoustic detection of a North Atlantic right whale triggers a delay to 
commencing pile driving and shutdown.
    Prior to the start of certain specified activities (foundation 
installation, cofferdam install and removal, HRG surveys), Dominion 
Energy must ensure designated areas (i.e., clearance zones; see Tables 
25, 26, 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 and shutdown zones have been 
developed in consideration of modeled distances to relevant PTS 
thresholds with respect to minimizing the potential for take by Level A 
harassment. All required clearance and shutdown zones for large whales 
are larger than the largest modeled acoustic range 
(R95) distances to thresholds corresponding to Level 
A harassment (SEL and peak). For foundation installation, the minimum 
visibility zone would extend 2,000 m from the WTG monopile or OSS pin 
piles. This is larger than the distance 1,750 m shutdown zone used 
during the construction of the two CVOW Pilot Project turbines (then 
called the ``exclusion zone''), given larger piles and higher hammer 
energy planned for use, which creates a larger distance to the Level A 
harassment threshold (see proposed rule for more information). Even 
with the larger acoustic ranges produced from Tetra Tech's conservative 
modeling for the CVOW-C project, the minimum visibility zone does not 
differ greatly from those presented for other nearby projects which 
calculated distances to thresholds in consideration of animal movement 
(i.e., off of New Jersey for both the Ocean Wind 1 final rule--1.65 km 
(1.03 mi) in the summer and 2.5 km (1.56 mi) in the winter (see 88 FR 
62898, September 13, 2023) and the Atlantic Shores South proposed 
rule--1.9 km (1.2 mi; see 88 FR 65430, September 22, 2023)).
    For cofferdam and goal post pile driving and HRG surveys, 
monitoring must be conducted for 30 minutes prior to initiating 
activities and the clearance zones must be free of marine mammals 
during that time.
    For any other in-water construction heavy machinery activities 
(e.g., trenching, cable laying, etc.), if a marine mammal is on a path 
towards or comes within 10 m (32.8 ft) of equipment, Dominion Energy is 
required to cease operations until the marine mammal has moved more 
than 10 m on a path away from the activity to avoid direct interaction 
with equipment.
    Once an activity begins, any marine mammal entering their 
respective shutdown zone would trigger the

[[Page 4434]]

activity to cease. In the case of pile driving, the shutdown 
requirement may be waived if it 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 
if the lead engineer determines there is pile refusal or pile 
instability. In situations when shutdown is called for during 
foundation pile driving but Dominion Energy 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. Dominion Energy 
must document and report to NMFS all cases where the emergency 
exemption is taken.
    After shutdown, foundation pile driving may be reinitiated once all 
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, at which 
time the lowest hammer energy must be used to maintain stability. If 
pile driving has been shut down due to the presence of a North Atlantic 
right whale, pile driving must not restart until the North Atlantic 
right whale has neither been visually nor acoustically detected for 30 
minutes. Upon re-starting pile driving, soft-start protocols must be 
followed if pile driving has ceased for 30 minutes or longer.
    The clearance and shutdown zone sizes vary by species and are shown 
in Tables 25 and 26, 27, 28, and 29 for each planned activity. Dominion 
Energy is allowed to request modification to these zone sizes pending 
results of sound field verification (see regulatory text at the end of 
this rulemaking). Any changes to zone size would be part of adaptive 
management and would require NMFS' approval.
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 Table 27--Distances to Mitigation Zones During Nearshore Cable Landfall
                               Activities
                         [Temporary Cofferdams]
------------------------------------------------------------------------
                                          Installation and removal of
                                             temporary cofferdams
           Marine mammals            -----------------------------------
                                       Clearance zone     Shutdown zone
                                             (m)               (m)
------------------------------------------------------------------------
North Atlantic right whale--visual
 detection..........................             Any distance
                                     -----------------------------------
All other Mysticetes and sperm                   1,000             1,000
 whales.............................
Delphinids..........................               250               100
Pilot whales........................             1,000             1,000
Harbor porpoises....................               250               100
Seals...............................               250               100
------------------------------------------------------------------------


 Table 28--Distances to Mitigation Zones During Nearshore Cable Landfall
                               Activities
                         [Temporary goal posts]
------------------------------------------------------------------------
                                          Installation and removal of
                                             temporary goal posts
           Marine mammals            -----------------------------------
                                       Clearance zone     Shutdown zone
                                             (m)               (m)
------------------------------------------------------------------------
North Atlantic right whale--visual
 detection..........................             Any distance
                                     -----------------------------------
All other Mysticetes and sperm                   1,000             1,000
 whales.............................
Delphinids..........................               250               100
Pilot whales........................             1,000             1,000
Harbor porpoises....................               750               100
Seals...............................               500               100
------------------------------------------------------------------------


     Table 29--Distances to the Mitigation Zones During HRG Surveys
------------------------------------------------------------------------
                                                  HRG surveys
                                     -----------------------------------
           Marine mammals              Clearance zone     Shutdown zone
                                             (m)               (m)
------------------------------------------------------------------------
North Atlantic right whale--visual                 500               500
 detection..........................
Endangered species (excluding North                500               500
 Atlantic right whales).............
All other marine mammals \a\........               100               100
------------------------------------------------------------------------
\a\ Exceptions are noted for delphinids from genera Delphinus,
  Lagenorhynchus, Stenella, Tursiops, and both seal species.

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. Dominion Energy must 
utilize a soft-start protocol for impact pile driving of foundation 
piles (monopiles and pin piles). Typically, NMFS requires a soft-start 
procedure of the applicant 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. However, Dominion Energy's engineers have 
expressed concern with this approach as it could potentially damage the 
impact pile driving hammer. As such, specific soft start protocols 
considering final design details, including site-specific soil 
properties and other considerations, will be incorporated into the LOA, 
if issued. Dominion Energy, with approval from NMFS, may also modify 
the soft start procedures through adaptive management.
    HRG survey operators are required to ramp-up sources when the 
acoustic sources are used unless the equipment operates on a binary on/
off switch. The ramp-up would involve starting from the smallest 
setting to the operating level over a period of approximately 30 
minutes. No soft-start or ramp-up is required for nearshore cable 
landfall activities given the type of activity (i.e., vibratory pile 
driving for cofferdams) and the short duration of the activity (i.e., 
impact pile driving of goal posts).
    Where required, soft-start and ramp-up will be required at the 
beginning of each day's activity and at any time following a cessation 
of activity of 30 minutes or longer. Prior to soft-start or ramp-up 
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 Dominion Energy's fishery monitoring 
surveys impacting marine mammals is minimal, NMFS requires Dominion 
Energy to adhere to gear and vessel mitigation measures to reduce 
potential impacts to the extent practicable. In addition, all crew 
undertaking the fishery monitoring survey activities are required to 
receive protected species identification training prior to activities 
occurring and attend

[[Page 4440]]

the aforementioned onboarding training. The specific requirements that 
NMFS has set for the fishery monitoring surveys can be found in the 
regulatory text at the end of this rulemaking.
    Based on our evaluation of the mitigation measures, as well as 
other measures considered by NMFS, NMFS has determined that these 
measures will provide the means of affecting the least practicable 
adverse impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

    As noted in the Changes From the Proposed to Final Rule section, we 
have added, modified, or clarified a number of monitoring and reporting 
measures since the proposed rule. These changes are described in detail 
in the sections below and, otherwise, the marine mammal monitoring and 
reporting requirements have not changed since the proposed rule.
    In order to promulgate a rulemaking for an activity, section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA 
implementing regulations at 50 CFR 216.104(a)(13) indicate that 
requests for authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the 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 also be 
conducted during foundation 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 record all 
incidents of marine mammal occurrence at any distance from the 
foundation piling locations and 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 (PSO) and Passive Acoustic Monitoring (PAM) 
Operator Requirements

    Dominion Energy is required to employ NMFS-approved PSOs and PAM 
operators. PSOs are trained professionals who are tasked with visual 
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 requires Dominion 
Energy to conduct PAM by PAM operators during foundation 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 and, together, 
these two monitoring methods are well understood to provide best 
results when combined (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, these set-ups would need to be 
considered on a case-by-case basis.
    NMFS does not formally administer any PSO or PAM operator training 
program or endorse specific providers, but will approve PSOs and PAM 
operators that have successfully completed courses that meet the 
curriculum and trainer requirements referenced below and further 
specified in the regulatory text at the end of this rulemaking.
    NMFS will provide PSO and PAM operator approvals in the context of 
the need to ensure that PSOs and PAM operators have the necessary 
training and/or experience to carry out their duties competently. In 
order for PSOs

[[Page 4441]]

and PAM operators to be approved, NMFS must review and approve PSO and 
PAM operator resumes indicating successful completion of an acceptable 
training course. PSOs and PAM operators must have previous experience 
observing marine mammals and must have the ability to work with all 
required and relevant software and equipment. NMFS may approve PSOs and 
PAM operators as conditional or unconditional. A conditional approval 
may be given to one who is trained but has not yet attained the 
requisite experience. An unconditional approval is given to one who is 
trained and has attained the necessary experience. The specific 
requirements for conditional and unconditional approval can be found in 
the regulatory text at the end of this rulemaking.
    Conditionally-approved PSOs and PAM operators would be paired with 
an 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'') 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. Dominion Energy 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 Dominion Energy at least 30 days prior to the start of 
the project. Should Dominion Energy require additional PSOs or PAM 
operators throughout the project, Dominion Energy 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 eyes on the pile driving vessel) are also 
designed to increase marine mammal detection capabilities. Specifics on 
these types of requirements can be found in the regulations at the end 
of this rulemaking. In summary, at least three PSOs and one PAM 
operator per acoustic data stream (equivalent to the number of acoustic 
buoys) must be on-duty and actively monitoring per platform during 
foundation installation; at least two PSOs must be on duty during cable 
landfall construction impact vibratory pile installation and removal 
(temporary cofferdams and temporary goal posts); at least one PSO must 
be on-duty during HRG surveys conducted during daylight hours; and at 
least two PSOs must be on-duty during HRG surveys conducted during 
nighttime.
    In addition to monitoring duties, PSOs and PAM operators are 
responsible for data collection. The data collected by PSO and PAM 
operators and subsequent analysis provide the necessary information to 
inform an estimate of the amount of take that occurred during the 
project, better understand the impacts of the project on marine 
mammals, address the effectiveness of monitoring and mitigation 
measures, and to adaptively manage activities and mitigation in the 
future. Data reported includes information on marine mammal sightings, 
activity occurring at time of sighting, monitoring conditions, and if 
mitigative actions were taken. Specific data collection requirements 
are contained within the regulations at the end of this rulemaking.
    Dominion Energy is 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 
rulemaking. Additional information can be found in Dominion Energy's 
PSMMP found with their ITA application on NMFS' website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Sound Field Verification (SFV)

    Dominion Energy must conduct SFV measurements for all foundation 
pile-driving activities associated with the installation of, at 
minimum, the first 3 monopile foundations, and for all 3 jacket 
foundations used for OSS, assuming all 12 pin piles are installed (n=4 
pin piles per OSS). SFV measurements must continue until at least three 
consecutive monopiles demonstrate distances to thresholds are at or 
below those modeled, assuming 10 dB of attenuation. Subsequent SFV 
measurements are also required should larger piles be installed, or 
additional piles be driven that are anticipated to produce longer 
distances to harassment isopleths than those previously measured (e.g., 
higher hammer energy, greater number of strikes, etc.). The 
measurements and reporting associated with SFV can be found in the 
regulatory text at the end of this rulemaking. The requirements are 
extensive to ensure monitoring is conducted appropriately and the 
reporting frequency is such that Dominion Energy is required to make 
adjustments quickly (e.g., ensure bubble curtain hose maintenance, 
check bubble curtain air pressure supply, add additional sound 
attenuation, etc.) to ensure marine mammals are not experiencing noise 
levels above those considered in this analysis. For recommended SFV 
protocols for impact pile driving, please consult the ISO 18406 
Underwater acoustics--Measurement of radiated underwater sound from 
percussive pile driving (International Organization for 
Standardization, 2017).

Reporting

    Prior to any construction activities occurring, Dominion Energy 
would provide a report to NMFS Office of Protected Resources that 
demonstrates that all Dominion Energy personnel, including the vessel 
crews, vessel captains, PSOs, and PAM operators, have completed all 
required trainings.

[[Page 4442]]

    NMFS would require standardized and frequent reporting from 
Dominion Energy 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. Dominion Energy is required to submit 
weekly, monthly, annual, and situational reports. The specifics of what 
we require to be reported can be found in the regulatory text at the 
end of this final rule.
    Weekly Report--During foundation installation activities, Dominion 
Energy 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--Dominion Energy is required to compile and submit 
monthly reports to NMFS Office of Protected Resources that include a 
summary of all information in the weekly reports, including project 
activities carried out in the previous month, vessel transits (number, 
type of vessel, and route), number of piles installed, all detections 
of marine mammals, and any mitigative actions taken. Monthly reports 
would be due on the 15th of the month for the previous month. The 
monthly report would also identify which turbines become operational 
and when (a map must be provided). Once all foundation pile 
installation is complete, monthly reports would no longer be required.
    Annual Reporting--Dominion Energy is required to submit an annual 
marine mammal monitoring (both PSO and PAM) report to NMFS Office of 
Protected Resources no later than 90 days following the end of a given 
calendar year describing, in detail, all of the information required in 
the monitoring section above. A final annual report must be prepared 
and submitted within 30 calendar days following receipt of any NMFS 
comments on the draft report.
    Final 5-Year Reporting--Dominion Energy must submit its draft 5-
year report(s) to NMFS Office of Protected Resources on all visual and 
acoustic monitoring conducted under the LOA within 90 calendar days of 
the completion of activities occurring under the LOA. A final 5-year 
report must be prepared and submitted within 60 calendar days following 
receipt of any NMFS comments on the draft report. Information contained 
within this report is described at the beginning of this section.
    Situational Reporting--Specific situations encountered during the 
development of the Project 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 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, Dominion Energy must immediately cease all activities 
until NMFS Office of Protected Resources is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
LOA. NMFS Office of Protected Resources may impose additional measures 
to minimize the likelihood of further prohibited take and ensure MMPA 
compliance. Dominion Energy may not resume their activities until 
notified by NMFS Office of Protected Resources.
    In the event of a vessel strike of a marine mammal by any vessel 
associated with the Project, Dominion Energy must immediately report 
the strike incident. If the strike occurs in the Greater Atlantic 
Region (Maine to Virginia), Dominion Energy must call the NMFS Greater 
Atlantic Stranding Hotline. Separately, Dominion Energy must also and 
immediately report the incident to NMFS Office of Protected Resources 
and NMFS Greater Atlantic Regional Fisheries Office (GARFO). Dominion 
Energy must immediately cease all on-water activities until NMFS Office 
of Protected Resources is able to review the circumstances of the 
incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the LOA. NMFS Office 
of Protected Resources may impose additional measures to minimize the 
likelihood of further prohibited take and ensure MMPA compliance. 
Dominion Energy may not resume their activities until notified by NMFS.
    In the event of any lost gear associated with the fishery surveys, 
Dominion Energy must report to the GARFO as soon as possible or within 
24 hours of the documented time of missing or lost gear. This report 
must include information on any markings on the gear and any efforts 
undertaken or planned to recover the gear.
    The specifics of what NMFS Office of Protected Resources requires 
to be reported is listed at the end of this rulemaking in the 
regulatory text.
    Sound Field Verification--Dominion Energy is required to submit 
interim SFV reports after each foundation installation as soon as 
possible but within 48 hours. A final SFV report for all monopile 
foundation installation would be required within 90 days following 
completion of acoustic monitoring.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Dominion Energy's construction activities contain an adaptive 
management component. Our understanding of the effects of offshore wind 
construction activities (e.g., acoustic and explosive stressors) on 
marine mammals continues to evolve, which makes the inclusion of an 
adaptive management component both valuable and necessary within the 
context of 5-year regulations.
    The monitoring and reporting requirements in this final rule 
provide NMFS with information that helps us to better understand the 
impacts of the project's activities on marine mammals and informs our 
consideration of whether any changes to mitigation and monitoring are 
appropriate.
    The use of adaptive management allows NMFS to consider new 
information and modify mitigation,

[[Page 4443]]

monitoring, or reporting requirements, as appropriate, with input from 
Dominion Energy 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, Dominion Energy (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 discuss the estimated maximum 
number of takes by Level A harassment and Level B harassment that could 
occur incidental to Dominion Energy's specified activities based on the 
methods described. The impact that any given take would have is 
dependent on many case-specific factors that need to be considered in 
the negligible impact analysis (e.g., the context of behavioral 
exposures such as duration or intensity of a disturbance, the health of 
impacted animals, the status of a species that incurs fitness-level 
impacts to individuals, etc.). In this final rule, we evaluate the 
likely impacts of the enumerated harassment takes that are authorized 
in the context of the specific circumstances surrounding these 
predicted takes. We also collectively evaluate this information, as 
well as other more taxa-specific information and mitigation measure 
effectiveness, in group-specific discussions that support our 
negligible impact conclusions for each stock. As described above, no 
serious injury or mortality is expected or authorized for any species 
or stock.
    The Description of the Specified Activities section of this 
preamble describes Dominion Energy's specified activities that may 
result in take of marine mammals and an estimated schedule for 
conducting those activities. Dominion Energy has provided a realistic 
construction schedule (e.g., Dominion Energy's schedule reflects the 
maximum number of piles they anticipate to be able to drive each month 
in which pile driving is authorized to occur), although we recognize 
schedules may shift for a variety of reasons (e.g., weather or supply 
delays). However, the total number of takes would not exceed the 5-year 
totals and maximum annual total in any given year indicated in Tables 
23 and 24, respectively.
    We base our analysis and negligible impact determination on the 
maximum number of takes that could occur and are authorized annually 
and across the effective period of these regulations and extensive 
qualitative consideration of other contextual factors that influence 
the degree of impact of the takes on the affected individuals and the 
number and context of the individuals affected. As stated before, the 
number of takes, both maximum annual and 5-year total, alone are only a 
part of the analysis.
    To avoid repetition, we provide some general analysis in this 
Negligible Impact Analysis and Determination section that applies to 
all the species listed in Table 2, given that some of the anticipated 
effects of Dominion Energy's construction activities on marine mammals 
are expected to be relatively similar in nature. Then, we subdivide 
into more detailed discussions for mysticetes, odontocetes, and 
pinnipeds, which have broad life-history traits that support an 
overarching discussion of some factors considered within the analysis 
for those groups (e.g., habitat-use patterns, high-level differences in 
feeding strategies).
    Last, we provide a negligible impact determination for each species 
or stock, providing species or stock-specific information or analysis, 
where appropriate (e.g., North Atlantic right whales given their 
population status). Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of Dominion Energy's activities, and then providing species- or 
stock-specific information allows us to avoid duplication while 
ensuring that we have analyzed the effects of the specified activities 
on each affected species or stock. It is important to note that in the 
group or species sections, we base our negligible impact analysis on 
the maximum annual take that is predicted under the 5-year rule; 
however, the majority of the impacts are associated with WTG foundation 
and OSS foundation installation, which is scheduled to occur largely 
within the first 2 years (2024 through 2025) of the effective period of 
these regulations. 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 22, 23, and 24).
    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). The 
number of takes by harassment Dominion Energy has requested and NMFS is 
authorizing 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 the broad application of an average seasonal sound 
speed profile (i.e., between May 1st and October 31st) to all months 
within a given season based on the foundation pile driving period. The 
exposure model results do not reflect any mitigation measures (other

[[Page 4444]]

than 10 dB sound attenuation for foundation pile driving and spatio-
temporal restrictions (i.e., seasonal pile driving window; pile driving 
cannot start at night)) or avoidance response. The number of takes 
requested and authorized also reflects careful consideration of other 
data (e.g., group size data) and for Level A harassment potential of 
some large whales, the consideration of mitigation measures. For all 
species, the number of takes authorized represents the maximum amount 
of Level A harassment and Level B harassment that could occur.

Behavioral Disturbance

    In general, NMFS anticipates that impacts on an individual that has 
been harassed are likely to be more intense when exposed to higher 
received levels and for a longer duration (though this is in no way a 
strictly linear relationship for behavioral effects across species, 
individuals, or circumstances) and less severe impacts result when 
exposed to lower received levels and for a brief duration. However, 
there is also growing evidence of the importance of contextual factors 
such as distance from a source in predicting marine mammal behavioral 
response to sound--i.e., sounds of a similar level emanating from a 
more distant source have been shown to be less likely to evoke a 
response of equal magnitude (DeRuiter and Doukara, 2012; Falcone et 
al., 2017). As described in the Potential Effects to Marine Mammals and 
their Habitat section of the proposed rule, the intensity and duration 
of any impact resulting from exposure to Dominion Energy's activities 
is dependent upon a number of contextual factors including, but not 
limited to, sound source frequencies, whether the sound source is 
moving towards the animal, hearing ranges of marine mammals, behavioral 
state at time of exposure, status of individual exposed (e.g., 
reproductive status, age class, health) and an individual's experience 
with similar sound sources. Southall et al. (2021), Ellison et al. 
(2012) and Moore and Barlow (2013), among others, emphasize the 
importance of context (e.g., behavioral state of the animals, distance 
from the sound source) in evaluating behavioral responses of marine 
mammals to acoustic sources. Harassment of marine mammals may result in 
behavioral modifications (e.g., avoidance, temporary cessation of 
foraging or communicating, changes in respiration or group dynamics, 
masking) or may result in auditory impacts such as hearing loss. In 
addition, some of the lower-level physiological stress responses (e.g., 
change in respiration, change in heart rate) discussed previously would 
likely co-occur with the behavioral modifications, although these 
physiological responses are more difficult to detect, and fewer data 
exist relating these responses to specific received levels of sound. 
Takes by Level B harassment, then, may have a stress-related 
physiological component as well; however, we would not expect Dominion 
Energy's activities to produce conditions of long-term and continuous 
exposure to noise leading to long-term physiological stress responses 
in marine mammals that could affect reproduction or survival.
    In the range of behavioral effects that might be expected to be 
part of a response that qualifies as an instance of Level B harassment 
by behavioral disturbance (which by nature of the way it is modeled/
counted, occurs within 1 day), the less severe end might include 
exposure to comparatively lower levels of a sound, at a greater 
distance from the animal, for a few or several minutes. A less severe 
exposure of this nature could result in a behavioral response such as 
avoiding an area that an animal would otherwise have chosen to move 
through or feed in for some amount of time or breaking off one or a few 
feeding bouts. More severe effects could occur if an animal gets close 
enough to the source to receive a comparatively higher level, is 
exposed continuously to one source for a longer time or is exposed 
intermittently to different sources throughout a day. Such effects 
might result in an animal having a more severe flight response and 
leaving a larger area for a day or more or potentially losing feeding 
opportunities for a day. However, such severe behavioral effects are 
expected to occur infrequently.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral 
reactions to noise exposure, when taking place in a biologically 
important context, such as disruption of critical life functions, 
displacement, or avoidance of important habitat, are more likely to be 
significant if they last more than 1 day or recur on subsequent days 
(Southall et al., 2007) due to diel and lunar patterns in diving and 
foraging behaviors observed in many cetaceans (Baird et al., 2008; 
Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 2014). It 
is important to note the water depth in the Project Area is shallow (up 
to 40 m) 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 
Dominion Energy expects to harass (which is lower) but rather to the 
instances of take (i.e., exposures above the Level B harassment 
thresholds) that may occur. These instances may represent either brief 
exposures for HRG surveys, or, in some cases, longer durations of 
exposure within a day (e.g., pile driving). Some members of a species 
or stock may experience one exposure as they move through an area while 
other individuals of a species may experience recurring instances of 
take over multiple days throughout the year while, in which case 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 Dominion Energy, 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, 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 and 
associated exposure. While impact pile driving for foundation 
installation is anticipated to be most impactful for these reasons, 
impacts are minimized, to the extent practicable, through 
implementation of mitigation measures, including use of a sound 
attenuation system, soft-starts, the implementation of clearance zones 
that would facilitate a delay to pile-driving commencement, and 
implementation of shutdown zones. For example, given sufficient notice 
through the use of soft-start, marine mammals are expected to move away 
from a sound source that is disturbing prior to becoming exposed to 
very loud noise levels. The requirement to couple visual monitoring and 
PAM before and during all foundation installation will increase the 
overall capability to detect marine mammals compared to one method 
alone.

[[Page 4445]]

    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 is 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 Dominion Energy's activities and, as described 
earlier, the authorized takes by Level B harassment may represent takes 
in the form of behavioral disturbance, TTS, or both. As discussed in 
the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat section of the proposed rule (88 FR 28656, May 4, 2023), 
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 
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 anticipate the 
potential for TTS is higher in low-frequency cetaceans (i.e., 
mysticetes) than other marine mammal hearing groups and is more likely 
to occur in frequency bands in which they communicate. 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 Dominion Energy's 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. The required mitigation 
measures further reduce the potential for TTS for all species.
    Generally, both the degree of TTS and the duration of TTS would be 
greater if the marine mammal is exposed to a higher level of energy 
(which would occur when the peak dB level is higher, or the duration is 
longer). The threshold for the onset of TTS was discussed previously 
(see the Estimated Take section of this preamble). However, source 
level is not the sole predictor of TTS. An animal would have to 
approach closer to the source or remain in the vicinity of the sound 
source appreciably longer to increase the received SEL, which would be 
difficult considering the required mitigation and the nominal speed of 
the receiving animal relative to the stationary sources such as impact 
pile driving. The recovery time of TTS is also of importance when 
considering the potential impacts from TTS. In TTS laboratory studies 
(as discussed in the Potential Effects of the Specified Activities on 
Marine Mammals and their Habitat section of the proposed rule (88 FR 
28656, May 4, 2023)), 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 times that 
any individual might incur TTS, the low degree of TTS and the short 
anticipated duration, and the unlikely scenario that any TTS overlapped 
the entirety of a critical hearing range, it is unlikely that TTS of 
the nature expected to result from the project's activities would 
result in behavioral changes or other impacts that would impact any 
individual's (of any hearing sensitivity) reproduction or survival.

Permanent Threshold Shift (PTS)

    NMFS is authorizing a very limited number (i.e., single digits 
annually) of takes by PTS to some marine mammal individuals. The 
numbers of authorized annual takes by Level A harassment are relatively 
low for all marine mammal stocks and species (Table 23). 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 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.
    Any PTS incurred from these activities 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. 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. For these reasons, any 
PTS incurred as a result of exposure to these activities is not 
expected to impact the reproduction or survival of any individuals.

Auditory Masking or Communication Implications

    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

[[Page 4446]]

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 for this project has indicated, 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 
Dominion Energy's activities, paired with habitat use patterns by 
marine mammals, does not support the likelihood that the level of 
masking that could occur would have the potential to affect 
reproductive success or survival.

Impacts on Habitat and Prey

    Construction activities may result in fish and invertebrate 
mortality or injury very close to the source, and all of Dominion 
Energy's activities may cause some fish to leave the area of 
disturbance. It is anticipated that any mortality or injury would be 
limited to a very small subset of available prey and the implementation 
of mitigation measures such as the use of a noise attenuation system 
(i.e., a double bubble curtain) 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; however, due to the relatively small area of the habitat that 
may be affected at any given time (e.g., around a pile being driven), 
the impacts to marine mammal habitat are not expected to cause 
significant or long-term negative consequences.
    Cable presence is not anticipated to impact marine mammal habitat 
as these would be buried, and any electromagnetic fields emanating from 
the cables are not anticipated to result in consequences that would 
impact marine mammals prey to the extent they would be unavailable for 
consumption.
    The presence of wind turbines within the Lease Area could have 
longer-term impacts on marine mammal habitat, as the project would 
result in the persistence of the structures within marine mammal 
habitat for more than 30 years. The presence of structures such as wind 
turbines is, in general, likely to result in certain oceanographic 
effects in the marine environment and may alter aggregations and 
distribution of marine mammal zooplankton prey through changing the 
strength of tidal currents and associated fronts, changes in 
stratification, primary production, the degree of mixing, and 
stratification in the water column (Chen et al., 2021; Johnson et al., 
2021; Christiansen et al., 2022; Dorrell et al., 2022).
    As discussed in the Potential Effects of the Specified Activities 
on Marine Mammals and their Habitat section of the proposed rule (88 FR 
28656, May 4, 2023), the project would consist of no more than 179 
foundations (176 WTGs and 3 OSSs) in the Lease Area, which will 
gradually become operational following construction completion. While 
there are likely to be oceanographic impacts from the presence of the 
CVOW-C Project, meaningful oceanographic impacts relative to 
stratification and mixing that would significantly affect marine mammal 
habitat and prey over large areas in key foraging habitats during the 
effective period of the regulations are not anticipated (which 
considers 2-3 years of turbine operation). For these reasons, if 
oceanographic features are affected by the project during the effective 
period of the regulations, the impact on marine mammal habitat and 
their prey is likely to be comparatively minor.
    The CVOW-C Biological Opinion provided an evaluation of the 
presence and operation of the Project on, among other species, marine 
mammals and their prey (see https://repository.library.noaa.gov/view/noaa/55495). While the consultation considered the life of the project 
(approximately 33 years), we considered the potential for the habitat 
and prey impacts to occur within the 5-year effective time frame of 
this rule. Overall, the Biological Opinion concluded that impacts from 
loss of sandy bottom habitat (from the presence of turbines and 
placement of scour protection) as well as any beneficial reef effects 
are expected to be so small that they cannot be meaningfully measured, 
evaluated, or detected, and are therefore insignificant. The Biological 
Opinion also concluded that the presence and operation of the wind farm 
may change the distribution of plankton within the wind farm, but these 
changes are not expected to affect the oceanographic forces 
transporting zooplankton into the area. Therefore, the Biological 
Opinion concluded that the overall reduction in biomass of plankton is 
not an anticipated outcome of operating the Project. Thus, because 
changes in the biomass of zooplankton are not anticipated, any higher 
trophic level impacts are also not anticipated. That is, no effects to 
pelagic fish or benthic invertebrates that depend on plankton as forage 
food are expected to occur. Zooplankton, fish, and invertebrates are 
all considered marine mammal prey and, as fully described in the 
Biological Opinion, measurable, detectable, or significant changes to 
marine mammal prey abundance and distribution from wind farm operation 
are not anticipated.

Mitigation To Reduce Impacts on All Species

    This rulemaking includes a variety of mitigation measures designed 
to minimize to the extent practicable impacts on all marine mammals, 
with a focus on North Atlantic right whales (the latter is described in 
more detail below). For the dual approach of vibratory and impact pile 
driving of foundation piles, ten overarching measures are required, 
which are intended to reduce both the number and intensity of marine 
mammal takes: (1) seasonal/time of day work restrictions; (2) use of 
multiple PSOs to visually observe for marine mammals (with any 
detection within specifically designated zones that would trigger a 
delay or shutdown); (3) use of PAM to acoustically detect marine 
mammals, with a focus on detecting baleen whales (with any detection 
within designated zones triggering delay or shutdown); (4) 
implementation of clearance zones; (5) implementation of shutdown 
zones; (6) use of soft-start; (7) use of noise attenuation technology 
(i.e., double bubble curtain); (8) maintaining situational awareness of 
marine mammal presence through the requirement that any marine mammal 
sighting(s) by Dominion Energy 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 temporary cofferdam and goal post installation and removal, 
we are requiring five overarching measures: (1) seasonal/time of day 
work restrictions; (2) use of multiple PSOs to visually

[[Page 4447]]

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 
Dominion Energy 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 
Dominion Energy personnel must be reported to PSOs.
    NMFS prescribes mitigation measures based on the following 
rationale. For activities with large harassment isopleths, Dominion 
Energy is committed to reducing the noise levels generated to the 
lowest levels practicable and is required to ensure that they do not 
exceed a noise footprint above that which was modeled, assuming a 10-dB 
attenuation. Use of a soft-start during impact pile driving will allow 
animals to move away from (i.e., avoid) the sound source prior to 
applying higher hammer energy levels needed to install the pile 
(Dominion Energy will not use a hammer energy greater than necessary to 
install piles). Similarly, ramp-up during HRG surveys would allow 
animals to move away and avoid the acoustic sources before they reach 
their maximum energy level. For all activities, clearance zone and 
shutdown zone implementation, which are required when marine mammals 
are within given distances associated with certain impact thresholds 
for all activities, will reduce the magnitude and severity of marine 
mammal take. Additionally, the use of multiple PSOs (WTG and OSS 
foundation installation, temporary cofferdam and goal post installation 
and removal, HRG surveys), PAM operators (for foundation installation), 
and maintaining awareness of marine mammal sightings reported in the 
region (WTG and OSS foundation installation, temporary cofferdam and 
goal post installation and removal, HRG surveys) will aid in detecting 
marine mammals that would trigger the implementation of the mitigation 
measures. The reporting requirements including SFV reporting (for 
foundation installation and foundation operation,), will assist NMFS in 
identifying if impacts beyond those analyzed in this final rule are 
occurring, potentially leading to the need to enact adaptive management 
measures in addition to or in place of the mitigation measures.

Mysticetes

    Five mysticete species (comprising five stocks) of cetaceans (North 
Atlantic right whale, fin whale, humpback whale, minke whale, and sei 
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 may be engaged in opportunistic foraging 
behaviors. The extent to which an animal engages in these behaviors in 
the area is species-specific and varies seasonally. Many mysticetes are 
expected to predominantly be migrating through the Project Area towards 
or from feeding ground located further north (e.g., southern New 
England region, Gulf of Maine, Canada). While we acknowledged above 
that mortality, hearing impairment, or displacement of mysticete prey 
species may result locally from impact pile driving, 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 
are expected to be minor. Whales that choose to opportunistically 
forage and are temporarily displaced from the Project Area are expected 
to have sufficient remaining similar feeding habitat available to them 
in the area and, further, would not be prevented from feeding in other 
areas within the biologically important feeding habitats found further 
north. In addition, any displacement of whales or interruption of 
opportunistic 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 numbers 
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 23) 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 is 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 Dominion Energy has identified. 
Species-specific analysis regarding potential for repeated exposures 
and impacts is provided below.
    Fin, humpback, minke, and sei whales are the only mysticete species 
for which PTS is anticipated and authorized (refer back to Table 23). 
As described previously, PTS for mysticetes from impact pile driving 
may overlap frequencies used for communication, navigation, or 
detecting prey. However, given the nature and duration of the activity, 
the mitigation measures, and likely avoidance behavior, any PTS is 
expected to be of a small degree, would be limited to frequencies where 
pile-driving noise is concentrated (i.e., only a small subset of their 
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 the western Atlantic stock is considered depleted and strategic 
under the MMPA.

[[Page 4448]]

As described in the Potential Effects to Marine Mammals and Their 
Habitat section of the proposed rule (88 FR 28656, May 4, 2023), North 
Atlantic right whales are threatened by a low population abundance, 
higher than average mortality rates, and lower than average 
reproductive rates. Recent studies have reported individuals showing 
high stress levels (e.g., Corkeron et al., 2017) and poor health, which 
has further implications on reproductive success and calf survival 
(Christiansen et al., 2020; Stewart et al., 2021; Stewart et al., 
2022). As described below, a UME has been designated for North Atlantic 
right whales. Given this, the status of the North Atlantic right whale 
population is of heightened concern and, therefore, merits additional 
analysis and consideration. No injury or mortality is anticipated or 
authorized for this species.
    For North Atlantic right whales, this rule authorizes up to 17 
takes, by Level B harassment only, over the 5-year period, with a 
maximum annual allowable take of 7 (equating to approximately 2.07 
percent of the stock abundance, if each take were considered to be of a 
different individual), with far lower numbers than that expected in the 
years without foundation installation (e.g., years when only HRG 
surveys would be occurring). The Project Area is known as a migratory 
corridor for North Atlantic right whales and given the nature of 
migratory behavior (e.g., continuous path), as well as the low number 
of total takes, we anticipate that few, if any, of the instances of 
take would represent repeat takes of any individual, though it could 
occur if whales are engaged in opportunistic foraging behavior. While 
opportunistic foraging may occur in the Project area, the habitat does 
not support prime foraging habitat.
    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. Northward migration occurs mainly during 
the months of March and April while southern transit typically takes 
place during the months of November and December (LaBrecque et al., 
2015; Van Parijs et al., 2015). Overall, the Project Area contains 
habitat less frequently utilized by North Atlantic right whales than 
the foraging and calving grounds. Salisbury et al. (2015) detected 
North Atlantic right whales year-round off the coast of Virginia, yet 
they were only detected on 10 percent of the days from May through 
October. The greatest detections occurred from October through December 
through March, outside of the months of Dominion Energy's planned 
foundation installation. Therefore, we anticipate that any individual 
whales would typically be migrating through the Project Area and would 
not be lingering for extended periods of time and, further, fewer would 
be present in the months when foundation installation would be 
occurring. Other activities planned by Dominion Energy involve either 
much smaller harassment zones (i.e., HRG surveys) or are limited in 
amount and nearshore in location (i.e., cable landfall construction) 
but may occur during periods when North Atlantic right whales are more 
likely to be migrating through the Project Area. As any North Atlantic 
right whales within the Project Area would likely be engaged in 
migratory behavior (LaBrecque et al., 2015), it is likely that the 
authorized instances of take would occur to separate individual whales; 
however, some may be repeat takes of the same animal across multiple 
days for some short period of time. The only activity occurring from 
December through May that may impact North Atlantic right whale would 
be HRG surveys; no take from cable landfall construction is anticipated 
or authorized. Across all years, while it is possible an animal could 
have been exposed during a previous year, the low number of takes 
authorized during the 5-year effective period of the final rulemaking 
makes this scenario possible but unlikely (n=17). However, if an 
individual were to be exposed during a subsequent year, the impact of 
that exposure is likely independent of the previous exposure given the 
duration between exposures.
    North Atlantic right whales utilize areas outside of the Project 
Area for their main 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 November through May that may impact North 
Atlantic right whale would be primarily HRG surveys, 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 Specified 
Geographic Region section, North Atlantic right whales are presently 
experiencing an ongoing UME (beginning in June 2017). Preliminary 
findings support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of North Atlantic 
right whales. Given the current status of the North Atlantic right 
whale, the loss of even one individual could significantly impact the 
population. No mortality, serious injury, or injury of North Atlantic 
right whales as a result of the project is expected or authorized. Any 
disturbance to North Atlantic right whales due to Dominion Energy's 
activities is expected to result in temporary avoidance of the 
immediate area of construction. As no injury, serious injury, or 
mortality is expected or authorized, and Level B harassment of North 
Atlantic right whales will be reduced to the level of least practicable 
adverse impact through use of mitigation measures, the authorized 
number of takes of North Atlantic right whales would not exacerbate or 
compound the effects of the ongoing UME.
    As described in the general Mysticetes section above, foundation 
installation is likely to result in the highest number of annual takes 
and is of greatest concern given loud source levels. This activity is 
expected to consist of approximately 213 days over a maximum of 2 
years, assuming up to 30 days necessary for all 3 OSS foundations to be 
installed and assuming that a single WTG monopile (n=176 WTG 
foundations) is installed per day (i.e., 24-hour period), which we do 
acknowledge is not the case as Dominion Energy would, on some days, 
install up to 2 WTG monopile foundations, which would reduce this 
overall estimate. We also acknowledge that this estimate represents 183 
pile driving events, not WTGs planned to be installed, which slightly 
overestimates the total number of pile driving days likely necessary. 
In all cases, these activities would only occur 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

[[Page 4449]]

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). The effects of the activities are expected to be 
sufficiently low-level and localized to specific areas as to not 
meaningfully impact important behaviors such as migratory behavior of 
North Atlantic right whales. These takes are expected to result in 
temporary behavioral reactions, such as slight displacement (but not 
abandonment) of migratory habitat or temporary cessation of feeding. 
Further, given these exposures are generally expected to occur to 
different individual right whales migrating through (i.e., many 
individuals would not be impacted on more than 1 day in a year), with 
some subset potentially being exposed on no more than a few days within 
the year, they are unlikely to result in energetic consequences that 
could affect reproduction or survival of any individuals.
    Overall, NMFS expects that any behavioral harassment of North 
Atlantic right whales incidental to the specified activities would not 
result in changes to their migration patterns or foraging success, as 
only temporary avoidance of an area during construction is expected to 
occur. As described previously, North Atlantic right whales migrating 
through the Project Area are not expected to remain in this habitat for 
extensive durations, and any temporarily displaced animals would be 
able to return to or continue to travel through and opportunistically 
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 would be rare, given pile driving is 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, the 
anticipated mitigation effectiveness, and the likely avoidance 
behaviors. TTS is another potential form of Level B harassment that 
could result in brief periods of slightly reduced hearing sensitivity 
affecting behavioral patterns by making it more difficult to hear or 
interpret acoustic cues within the frequency range (and slightly above) 
of sound produced during impact pile driving; however, any TTS would 
likely be of low amount, limited duration, and limited to frequencies 
where most construction noise is centered (below 2 kHz). NMFS expects 
that right whale hearing sensitivity would return to pre-exposure 
levels shortly after migrating through the area or moving away from the 
sound source.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section of the proposed rule (88 FR 28656, May 4, 2023), the 
distance of the receiver to the source influences the severity of 
response with greater distances typically eliciting less severe 
responses. NMFS recognizes North Atlantic right whales migrating could 
be pregnant females (in the fall) and cows with older calves (in 
spring) and that these animals may slightly alter their migration 
course in response to any foundation pile driving; however, as 
described in the Potential Effects to Marine Mammals and Their Habitat 
section of the proposed rule (88 FR 28656, May 4, 2023), we anticipate 
that course diversion would be of small magnitude. Hence, while some 
avoidance of the pile-driving activities may occur, we anticipate any 
avoidance behavior of migratory North Atlantic right whales would be 
similar to that of gray whales (Tyack et al., 1983), on the order of 
hundreds of meters up to 1 to 2 km. This diversion from a migratory 
path otherwise uninterrupted by the project's activities is not 
expected to result in meaningful energetic costs that would impact 
annual rates of recruitment of survival. NMFS expects that North 
Atlantic right whales would be able to avoid areas during periods of 
active noise production while not being forced out of this portion of 
their habitat.
    North Atlantic right whale presence in the Project Area is year-
round. However, abundance during summer months is lower compared to the 
winter months with spring and fall serving as ``shoulder seasons'' 
wherein abundance waxes (fall) or wanes (spring). Given this year-round 
habitat usage, in recognition that where and when whales may actually 
occur during project activities is unknown as it depends on the annual 
migratory behaviors, NMFS is requiring a suite of mitigation measures 
designed to reduce impacts to North Atlantic right whales to the 
maximum extent practicable. These mitigation measures (e.g., seasonal/
daily work restrictions, vessel separation distances, reduced vessel 
speed) would not only avoid the likelihood of vessel strikes but also 
would minimize the severity of behavioral disruptions by minimizing 
impacts (e.g., through sound reduction using attenuation systems and 
reduced spatio-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, Dominion Energy 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 Specified 
Geographic Region section, Dominion Energy would be constructed within 
the North Atlantic right whale migratory corridor BIA, which represent 
areas and months within which a substantial portion of a species or 
population is known to migrate. The Lease Area is relatively small 
compared with the migratory BIA area (approximately 456.5 km\2\ for 
OCS-A 0483 versus the size of the full North Atlantic right whale 
migratory BIA, 269,448 km\2\). Further, the BIA is approximately 177 km 
(110 mi) in width (west to east), when measured at the widest point 
beginning just off the Virginia coastline. The Lease Area begins 
approximately 44 km (27.3 mi) east of Virginia Beach, Virginia, and is 
approximately 25 km (15.5 mi) in width from east to west (when measured 
horizontally). While construction activities would be occurring within 
the migratory path, its placement in deeper waters no closer than 44 km 
offshore and the fact the foundation installation (the most impactful 
activity) would not be occurring during the migration period (i.e., no 
foundation installation would occur November 1st through April 30th) 
provide high conservation benefits. Overall North Atlantic right whale 
migration is not expected to be impacted by the planned 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

[[Page 4450]]

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 November 1st through April 30th 
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 mitigation measures that would ensure that any exposures 
above the Level B harassment threshold would result in only short-term 
effects to individuals exposed.
    Foundation pile driving may only begin in the absence of North 
Atlantic right whales (based on visual and passive acoustic 
monitoring). If foundation 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 and acoustically detected 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 mitigation measures (e.g., delay pile driving 
upon a sighting or acoustic detection and shutting down upon a sighting 
or acoustic detection), the potential for TTS to occur is low.
    The clearance and shutdown measures are most effective when 
detection efficacy is maximized, as the measures are triggered by a 
sighting or acoustic detection. To maximize detection efficacy, NMFS 
requires the combination of PAM and visual observers. NMFS is requiring 
communication protocols with other project vessels, and other 
heightened awareness efforts (e.g., daily monitoring of North Atlantic 
right whale sighting databases) such that as a North Atlantic right 
whale approaches the source (and thereby could be exposed to higher 
noise energy levels), PSO detection efficacy would increase, the whale 
would be detected, and a delay to commencing foundation installation or 
shutdown (if feasible) would occur. In addition, the implementation of 
a soft-start for impact pile driving would provide an opportunity for 
whales to move away from the source if they are undetected, reducing 
received levels. Further, Dominion Energy has committed to not 
installing two WTG or OSS foundations simultaneously. North Atlantic 
right whales would, therefore, not be exposed to concurrent impact pile 
driving on any given day and the area ensonified at any given time 
would be limited. We further note that Dominion Energy will not be 
starting the installation of foundation piles at night.
    Additionally, Dominion Energy anticipates a need to undertake a 
dual vibratory and impact pile driving approach for foundation piles to 
avoid risks associated with pile run due to softer sedimentation in the 
Project Area. While Dominion Energy expects that up to 70 percent of 
their piles may necessitate this joint approach (approximately 123 
foundation piles), realistically not all piles would be at risk of pile 
run and would be installed, instead, by impact pile driving alone. 
However, as a conservative approach given uncertainty with the seabed 
conditions for the location of each pile, Dominion Energy assumed all 
foundation piles would undertake this approach. Furthermore, Dominion 
Energy has already stated that no concurrent installation of foundation 
piles is planned to occur, no concurrent vibratory and impact driving 
is expected to occur either as a 1.2-hour gap between the end vibratory 
driving to the start of impact pile driving (to allow for the moving 
and set-up of equipment) would treat each installation approach as a 
separate event and would not overlap.
    Finally, for HRG surveys, the maximum distance to the Level B 
harassment threshold is 100 m. The estimated take, by Level B 
harassment only, associated with HRG surveys conservatively accounts 
for the maximum number of North Atlantic right whale exposures that may 
occur when HRG acoustic sources are active. However, because of the 
short maximum distance to the Level B harassment threshold isopleth 
(100 m via the GeoMarine Dual 400 Sparker 800 J), 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 boomers, sparkers, and CHIRPs (if applicable) 
must be delayed during the clearance period if PSOs detect a North 
Atlantic right whale (or any other ESA-listed species) within 500 m of 
the acoustic source. With implementation of the mitigation 
requirements, take by Level A harassment is not anticipated and, 
therefore, not authorized. Potential impacts associated with Level B 
harassment would include low-level, temporary behavioral modifications, 
most likely in the form of avoidance behavior. Given the high level of 
precautions taken to minimize both the number 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 authorized. 
Extensive North Atlantic right whale-specific mitigation measures 
(beyond the robust suite required for all species) are expected to 
further minimize the number and severity of takes by Level B 
harassment. Given the documented habitat use within the area, the 
majority of the individuals predicted taken (including no more than 17 
instances of take, by Level B harassment only, over the course of the 
5-year rule, with an annual maximum of no more than 7) would be 
impacted on a maximum of 2 days in a year as North Atlantic right 
whales utilize this area for migration and would be transiting rather 
than residing in the area for extended periods of time; and, further, 
any impacts to North Atlantic right whales are expected to be in the 
form of lower-level behavioral disturbance. Given the magnitude and 
severity of the impacts discussed above, and in consideration of the 
required mitigation and other information presented, Dominion

[[Page 4451]]

Energy's activities are not expected to result in impacts on the 
reproduction or survival of any individuals, much less affect annual 
rates of recruitment or survival. For these reasons, we have determined 
that the take by Level B harassment anticipated and authorized would 
have a negligible impact on the North Atlantic right whale stock.
Fin Whale
    The fin whale is listed as Endangered under the ESA, and the 
western North Atlantic stock is considered both Depleted and Strategic 
under the MMPA. No UME has been designated for this species or stock. 
No serious injury or mortality is anticipated or authorized for this 
species.
    The rule authorizes up to 215 takes, by harassment only, over the 
5-year effective period of the rule. The maximum annual allowable take 
by Level A harassment and Level B harassment, would be 4 and 113, 
respectively (combined, this annual take (n=117) equates to 
approximately 1.72 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 with 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 Virginia 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 215 takes by harassment only over the course of 
the 5-year rule, and a maximum annual allowable take by Level A 
harassment and Level B harassment, of 4 and 113, respectively), and in 
consideration of the required mitigation and other information 
presented, Dominion Energy's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by harassment anticipated and authorized 
will have a negligible impact on the western North Atlantic stock of 
fin whales.
Humpback Whale
    The West Indies DPS of humpback whales is not listed as threatened 
or endangered under the ESA, but the Gulf of Maine stock, which 
includes individuals from the West Indies DPS, is considered Strategic 
under the MMPA. However, as described in the Description of Marine 
Mammals in the Specified Geographic Region section of this preamble, 
humpback whales along the Atlantic Coast have been experiencing an 
active UME as elevated humpback whale mortalities have occurred along 
the Atlantic coast from Maine through Florida since January 2016. Of 
the cases examined, approximately 40 percent had evidence of human 
interaction (vessel strike or entanglement). The UME does not yet 
provide cause for concern regarding population-level impacts and take 
from vessel strike and entanglement is not authorized in this 
rulemaking. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or DPS of which the Gulf of Maine 
stock is a part) remains stable at approximately 12,000 individuals.
    The rule authorizes up to 250 takes by harassment only over the 5-
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, is four and 130, respectively (combined, this 
maximum annual take (n=134) equates to approximately 9.6 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 Virginia, it is likely that some subset of the individual whales 
exposed could be taken several times annually.
    Among the activities analyzed, pile driving is likely to result in 
the highest number of Level A harassment annual takes (four) of 
humpback whales. The maximum number of annual take authorized, by Level 
B harassment, is highest for pile driving (n=104; WTGs plus OSS pin 
piles).
    As described in the Description of Marine Mammals in the Specified 
Geographic Region section, Humpback whales are known to occur regularly 
throughout the Mid-Atlantic Bight, including Virginia 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 Virginia. When foraging, humpback 
whales tend to remain in the area for extended durations to capitalize 
on the food sources.
    Assuming humpback whales who are feeding in waters within or 
surrounding the Project Area behave similarly, we expect that the 
predicted instances of disturbance could be comprised of some 
individuals that may be exposed on multiple days if they are utilizing 
the area as foraging habitat. Also similar to other baleen whales, if 
migrating, such individuals would likely be exposed to

[[Page 4452]]

noise levels from the project above the harassment thresholds only once 
during migration through the Project Area.
    For all the reasons described in the Mysticetes section above, we 
anticipate any potential PTS and TTS would be concentrated at half or 
one octave above the frequency band of pile-driving noise (most sound 
is below 2 kHz) which does not include the full predicted hearing range 
of baleen whales. If TTS is incurred, hearing sensitivity would likely 
return to pre-exposure levels relatively shortly after exposure ends. 
Any masking or physiological responses would also be of low magnitude 
and severity for reasons described above.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 250 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of four and 130, respectively), and in consideration of the 
required mitigation measures and other information presented, Dominion 
Energy's activities are not expected to result in impacts on the 
reproduction or survival of any individuals, much less affect annual 
rates of recruitment or survival. For these reasons, we have determined 
that the take by harassment anticipated and authorized will have a 
negligible impact on the Gulf of Maine stock of humpback whales.
Minke Whale
    Minke whales are not listed under the ESA, and the Canadian East 
Coast stock is neither considered Depleted nor strategic under the 
MMPA. There are no known areas of specific biological importance in or 
adjacent to the Project Area. As described in the Description of Marine 
Mammals in the Specified Geographic Region section, a UME has been 
designated for this species but is pending closure. No serious injury 
or mortality is anticipated or authorized for this species.
    The rule authorizes up to 131 takes, by harassment only, over the 
5-year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be eight and 56, respectively (combined, 
this annual take (n=64) 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). As described in the Description of Marine Mammals 
in the Specified Geographic Region section of the proposed rule, 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 Specified 
Geographic Region section, there is a UME for Minke whales, along the 
Atlantic coast from Maine through South Carolina, with highest number 
of deaths in Massachusetts, Maine, and New York, and preliminary 
findings in several of the whales have shown evidence of human 
interactions or infectious diseases. However, we note that the 
population abundance is greater than 21,000 and the take authorized 
through this action is not expected to exacerbate the UME in any way. 
Furthermore, this UME has been declared non-active and is pending 
closure.
    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 131 takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment, of 8 and 56, respectively), and in consideration of the 
required mitigation and other information presented, Dominion Energy's 
activities are not expected to result in impacts on the reproduction or 
survival of any individuals, much less affect annual rates of 
recruitment or survival. For these reasons, we have determined that the 
take by harassment anticipated and authorized will have a negligible 
impact on the Canadian Eastern Coastal stock of minke whales.
Sei Whale
    Sei whales are listed as Endangered under the ESA, and the Nova 
Scotia stock is considered both Depleted and Strategic under the MMPA. 
There are no known areas of specific biological importance in or 
adjacent to the Project Area and no UME has been designated for this 
species or stock. No serious injury or mortality is anticipated or 
authorized for this species.
    The rule authorizes up to 10 takes, by harassment only, over the 5-
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be one and three, respectively (combined, 
this annual take (n=4) equates to approximately 0.06 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 
Area of Specified Activities section of the proposed rule, 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 Virginia. 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 ten takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment, of one and three, respectively), and in consideration of 
the required mitigation and other information presented, Dominion 
Energy's activities are not expected to result in impacts on the 
reproduction or survival of any

[[Page 4453]]

individuals, much less affect annual rates of recruitment or survival. 
For these reasons, we have determined that the take by harassment 
anticipated and authorized will have a negligible impact on the Nova 
Scotia stock of sei whales.

Odontocetes

    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below. Odontocetes include 
dolphins, porpoises, and all other whales possessing teeth, and we 
further divide them into the following subsections: sperm whales, 
dolphins and small whales, and harbor porpoises. These sub-sections 
include more specific information, as well as conclusions for each 
stock represented.
    All of the takes of odontocetes authorized incidental to Dominion 
Energy's specified activities are by pile driving and HRG surveys. No 
serious injury or mortality is anticipated or authorized. 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 
to be conducted in terms of response severity, falls within a portion 
of the frequency range of most odontocete vocalizations. However, 
odontocete vocalizations span a much wider range than the low frequency 
construction activities planned for the project. As described above, 
recent studies suggest odontocetes have a mechanism to self-mitigate 
(i.e., reduce hearing sensitivity) the impacts of noise exposure, which 
could potentially reduce TTS impacts. Any masking or TTS is anticipated 
to be limited and would typically only interfere with communication 
within a portion of an odontocete's range and as discussed earlier, the 
effects would only be expected to be of a short duration and, for TTS, 
a relatively small degree.
    Furthermore, odontocete echolocation occurs predominantly at 
frequencies significantly higher than low frequency construction 
activities. Therefore, there is little likelihood that threshold shift 
would interfere with feeding behaviors. For HRG surveys, the sources 
operate at higher frequencies than foundation installation activities. 
However, sounds from these sources attenuate very quickly in the water 
column, as described above. Therefore, any potential for PTS and TTS 
and masking is very limited. Further, odontocetes (e.g., common 
dolphins, spotted dolphins, bottlenose dolphins) have demonstrated an 
affinity to bow-ride actively surveying HRG surveys. Therefore, the 
severity of any harassment, if it does occur, is anticipated to be 
minimal based on the lack of avoidance previously demonstrated by these 
species.
    The waters off the coast of Virginia 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 Virginia, including the Project Area, do 
not contain any particularly unique odontocete habitat features.
Sperm Whale
    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. exclusive economic zone. Although listed as 
endangered, the primary threat faced by the sperm whale across its 
range (i.e., commercial whaling) has been eliminated. Current potential 
threats to the species globally include vessel strikes, entanglement in 
fishing gear, anthropogenic noise, exposure to contaminants, climate 
change, and marine debris. There is no currently reported trend for the 
stock and, although the species is listed as endangered under the ESA, 
there are no specific issues with the status of the stock that cause 
particular concern (e.g., no UMEs). There are no known areas of 
biological importance (e.g., critical habitat or BIAs) in or near the 
Project Area. No mortality or serious injury is anticipated or 
authorized for this species.
    The rule authorizes up to six takes, by Level B harassment only 
over the 5-year period. The maximum annual allowable take by Level B 
harassment, is three, which equates to approximately 0.07 percent of 
the stock abundance, if each take were considered to be of a different 
individual, with no take expected in the years without foundation 
installation (e.g., years when only HRG surveys would be occurring). 
Given sperm whale's preference for deeper waters, especially for 
feeding, it is unlikely that individuals will remain in the Project 
Area for multiple days, and therefore, the estimated takes likely 
represent exposures of different individuals on 1 day annually.
    If sperm whales are present in the Project Area during any Project 
activities, they will likely be only transient visitors and not 
engaging in any significant behaviors. Further, the potential for TTS 
is low for reasons described in the general Odontocete section, but if 
it does occur, any hearing shift would be small and of a short 
duration. Because whales are not expected to be foraging in the Project 
Area, any TTS is not expected to interfere with foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than six takes, by Level B harassment only, over the 
course of the 5-year rule, and a maximum annual allowable take of 
three), and in consideration of the required mitigation and other 
information presented, Dominion Energy's activities are not expected to 
result in impacts on the reproduction or survival of any individuals, 
much less affect annual rates of recruitment or survival. For these 
reasons, we have determined that the take by Level B harassment 
anticipated and authorized will have a negligible impact on the North 
Atlantic stock of sperm whales.

[[Page 4454]]

Dolphins and Small Whales (Inclusive of Delphinid Species, False Killer 
Whale, Melon-headed Whale, Pygmy Sperm Whale, and Pilot Whales)
    The 12 species and 13 stocks included in this group (which are 
indicated in Table 2 in the Kogiidae and Delphinidae families) are not 
listed under the ESA; however, the Southern Migratory Coastal stock of 
bottlenose dolphins and short-finned pilot whales are listed as 
Strategic under the MMPA, and pantropical spotted dolphins are listed 
as Depleted under the MMPA. There are no known areas of specific 
biological importance in or around the Project Area. As described above 
for any of these species and no UMEs have been designated for any of 
these species. No serious injury or mortality is anticipated or 
authorized for these species.
    The 11 delphinid species (constituting 12 stocks) with takes 
authorized for the Project are Atlantic spotted dolphin, Atlantic 
white-sided dolphin, bottlenose dolphin, Clymene dolphin, common 
dolphin, false killer whale, melon-headed whale, long-finned pilot 
whale, short-finned pilot whale, pantropical spotted dolphin, and 
Risso's dolphin. The rule would allow for the total authorization of 8 
to 26,764 takes (depending on species) by Level B harassment only, over 
the 5-year period. The maximum annual allowable take for these species 
by Level B harassment, would range from 4 (false killer whale) to 7,360 
(both Atlantic spotted dolphin and common dolphin). Overall, this 
annual take equates to approximately 0.04 (Atlantic white-sided 
dolphin) to 18.44 (Atlantic spotted dolphin) percent of the stock 
abundance (if each take were considered to be of a different 
individual, which is not likely the case) depending on the species, 
with far lower numbers than that expected in the years without 
foundation installation (e.g., years when only HRG surveys would be 
occurring).
    Take has also been authorized for a single species (of a single 
stock) of Family Kogiidae, the pygmy sperm whale. This rule allows for 
the total authorization of two takes by Level B harassment only, over 
the entire 5-year period. The maximum annual allowable take for this 
species, by Level B harassment only, is one per year. Relative to the 
total population estimate for this small whale species, this equates to 
approximately 0.01 percent of the stock abundance, if each of the takes 
were considered to be of a different individual.
    The number of takes, likely movement patterns of the affected 
species, and the intensity of any Level B harassment, combined with the 
availability of alternate nearby foraging habitat suggests that the 
likely impacts would not impact the reproduction or survival of any 
individuals. 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. Some 
TTS can occur, but 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.
    Across these species, the maximum number of incidental takes, by 
Level B harassment only, authorized in any one year ranges between 1 
(pygmy sperm whale) and 7,360 (for both Atlantic spotted dolphins and 
common dolphins). The number of takes authorized in the last 3 years of 
the rule is notably less and the 5-year total number of take (by Level 
B harassment only) authorized ranges between 2 (pygmy sperm whale) and 
26,764 (Atlantic spotted dolphin). Further, though the estimated 
numbers of take are comparatively higher than the numbers for 
mysticetes, we note that for all species they are relatively low 
relative to the population abundance.
    For the Atlantic spotted dolphin, given both the comparatively 
higher number of takes and the higher number of takes relative to the 
stock abundance, while some of the takes likely represent exposures of 
different individuals on 1 day a year, it is likely that some subset of 
the individuals exposed could be taken several times annually. For all 
three stocks of bottlenose dolphin (i.e., offshore, coastal, and joint-
offshore and coastal), given the number of takes and residential 
tendencies of the species, 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.
    As described above for odontocetes broadly, given the comparatively 
higher number of estimated takes for some species and the behavioral 
patterns of odontocetes, we anticipate that a fair number of these 
instances of take in a day represent multiple exposures of a smaller 
number of individuals, meaning the actual number of individuals taken 
is lower. Although some amount of repeated exposure to some individuals 
is likely given the duration of activity planned by Dominion Energy, 
the intensity of any Level B harassment combined with the availability 
of alternate nearby foraging habitat suggests that the likely impacts 
would not impact the reproduction or survival of any individuals.
    Overall, most of the populations of all delphinid and small whale 
species and stocks for which we authorize take are stable (no declining 
population trends). For others, two stocks are labeled as strategic 
(i.e., Southern Migratory Coastal stock of bottlenose dolphins and 
Western North Atlantic stock of short-finned pilot whale) and one is 
labeled as depleted (i.e., pantropical spotted dolphin). None of these 
stocks are experiencing existing UMEs. No mortality, serious injury or 
Level A harassment is anticipated or authorized for any of these 
species. Given the magnitude and severity of the impacts discussed 
above and in consideration of the required mitigation and other 
information presented, as well as the status of these stocks, Dominion 
Energy's activities are not expected to result in impacts on the 
reproduction or survival of any individuals, much less affect annual 
rates of recruitment or survival. For these reasons, we have determined 
that the take by harassment anticipated and authorized will have a 
negligible impact on all of the following species and stocks: pygmy 
sperm whales, Atlantic spotted dolphins, Atlantic white-sided dolphins, 
bottlenose dolphins, Clymene dolphins, common dolphins, false killer 
whales, melon-headed whales, pilot whale spp. (consisting of long-fined 
pilot whales and short-finned pilot whales), pantropical spotted 
dolphins, and Risso's dolphins.
Harbor Porpoises
    Harbor porpoises are not listed under the ESA, and the Gulf of 
Maine/Bay of Fundy stock is neither considered depleted or strategic 
under the MMPA. The stock is found predominantly in northern U.S. 
coastal waters (less than 150 m depth) and up into Canada's Bay of 
Fundy (between New Brunswick and Nova Scotia). Although the population 
trend is not known, there are no UMEs or other factors that cause 
particular concern for this stock. No mortality or non-auditory injury 
are anticipated or authorized for this stock.
    The rule authorizes up to 143 takes, by harassment only, over the 
5-year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be 1 and 40, respectively (combined, this 
annual take (n=41) equates to approximately 0.04 percent of the stock 
abundance if each take were considered to be of a different 
individual). 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

[[Page 4455]]

individuals exposed could be taken up to a few times annually.
    Regarding the severity of takes by Level B harassment, because 
harbor porpoises are particularly sensitive to noise, it is likely that 
a fair number of the responses could be of a moderate nature, 
particularly to pile driving. In response to pile driving, harbor 
porpoises are likely to avoid the area during construction, as 
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne 
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United 
Kingdom, although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. However, foundation 
installation is scheduled to occur off the coast of Virginia (based on 
the density values (0.00000) presented for both summer (June to August) 
and fall (September to October); Table 1) and, given alternative 
foraging areas, 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 be of small magnitude. As such, any PTS would not interfere with 
key foraging or reproductive strategies necessary for reproduction or 
survival.
    As discussed in Hayes et al. (2022), harbor porpoises are 
seasonally distributed. During fall (October through December) and 
spring (April through June), harbor porpoises are widely dispersed from 
New Jersey to Maine, with lower densities farther north and south. 
During winter (January to March), intermediate densities of harbor 
porpoises can be found in waters off New Jersey to North Carolina, and 
lower densities are found in waters off New York to New Brunswick, 
Canada. In non-summer months they have been seen from the coastline to 
deep waters (<1,800 m; Westgate et al., 1998), although the majority 
are found over the continental shelf. While harbor porpoises are likely 
to avoid the area during any of the Project's construction activities, 
as demonstrated during European wind farm construction, the time of 
year in which work would occur is when harbor porpoises are not in 
highest abundance, and any work that does occur would not result in the 
species' abandonment of the waters off of Virginia.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Dominion Energy's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by harassment anticipated and authorized 
will have a negligible impact on the Gulf of Maine/Bay of Fundy stock 
of harbor porpoises.
Phocids (Harbor Seals and Gray Seals)
    The harbor seal and gray seal are not listed under the ESA, and 
neither the western North Atlantic stock of gray seal nor the western 
North Atlantic stock of harbor seal are considered depleted or 
strategic under the MMPA. There are no known areas of specific 
biological importance in or around the Project Area. As described in 
the Description of Marine Mammals in the Specified Geographic Region 
section, a UME has been designated for harbor seals and gray seals and 
is described further below. No serious injury or mortality is 
anticipated or authorized for this species.
    For the 2 seal species, the rule authorizes up to 220 takes for 
each species by harassment only over the 5-year period. The maximum 
annual allowable take for each species by Level A harassment and Level 
B harassment, would be one and 83, respectively (combined, this annual 
take (n=84) equates to approximately 0.14 percent of the stock 
abundance for harbor seals and 0.31 percent of the stock abundance for 
gray seals, if each take were considered to be of a different 
individual). Though harbor seals and gray 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 Virginia waters most often during 
the fall and winter, sometimes until early spring, with harbor seal 
occurrences more common than gray seals (Hayes et al., 2022; Jones and 
Rees, 2022; Ampela et al., 2023). 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. There are no 
known haul-out sites or other areas of importance for either harbor or 
gray seals near the coastal cofferdam and goal post location (offshore 
of the State Military Reservation in Virginia Beach, Virginia) or in 
the Project Area. However, pinnipeds have been recorded at different 
sites in the Chesapeake Bay and along Eastern Shore, Virginia (Jones 
and Rees, 2022; Ampela et al., 2023). Given the distance for which we 
expect Dominion Energy's activities to occur, away from the mouth and 
in-water regions of the Chesapeake Bay, NMFS does not expect that in-
air sounds produced would cause the take of hauled-out pinnipeds. 
Therefore, NMFS does not expect any harassment to occur and has not 
authorized any take from in-air impacts on hauled-out seals.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section in the proposed rule (88 FR 28656, May 4, 2023), 
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 (see 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

[[Page 4456]]

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 in[fllig]uenza (HPAI) H5N1. Although elevated 
strandings continue, neither UME (alone or in combination) provides 
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 required mitigation and other information 
presented, Dominion Energy's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by harassment anticipated and authorized 
will have a negligible impact on harbor and gray seals.

Negligible Impact Determination

    No mortality or serious injury is anticipated to occur or 
authorized. As described in the analysis above, the impacts resulting 
from the project's activities cannot be reasonably expected to, and are 
not reasonably likely to, adversely affect any of the species or stocks 
through effects on annual rates of recruitment or survival. Based on 
the analysis contained herein of the likely effects of the specified 
activity on marine mammals and their habitat, and, taking into 
consideration the implementation of the required mitigation and 
monitoring measures, NMFS finds that the marine mammal take from all of 
Dominion Energy's specified activities combined will have a negligible 
impact on all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the maximum number of individuals 
estimated to be taken in a year to the most appropriate estimation of 
abundance of the relevant species or stock in our determination of 
whether an authorization is limited to small numbers of marine mammals. 
When the predicted number of individuals to be taken is less than one-
third of the species or stock abundance, the take is considered to be 
of small numbers. Additionally, other qualitative factors may be 
considered in the analysis, such as the temporal or spatial scale of 
the activities.
    NMFS is authorizing incidental take by Level A harassment and/or 
Level B harassment of 21 species of marine mammals (with 22 managed 
stocks). The maximum number of instances of takes by combined Level A 
harassment and Level B harassment possible within any 1 year relative 
to the best available population abundance is less than one-third for 
all species and stocks potentially impacted.
    For 13 stocks, less than 1 percent of the stock abundance is 
authorized to be annually taken by harassment; for 7 stocks, less than 
10 percent of the stock abundance is authorized to be taken annually by 
harassment; and for 1 stock, less than 20 percent of the stock 
abundance is authorized to be annually take by harassment. Specific to 
the North Atlantic right whale, the maximum amount of take, which is by 
Level B harassment only, is 7, or 2.07 percent of the stock abundance, 
assuming that each instance of take represents a different individual. 
While no population estimate is available for melon-headed whales, it 
can be assumed that the low amount of maximum annual take authorized 
(n=5; by Level B harassment only) would constitute small numbers. For 
all species, please see Table 24 for information relating to this small 
numbers analysis.
    Based on the analysis contained herein of the activities (including 
the required mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
would be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Classification

Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA 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.
    There are four marine mammal species under NMFS jurisdiction that 
are listed as endangered or threatened under the ESA that may be taken, 
by harassment, incidental to construction of the CVOW-C Project: the 
North Atlantic right, sei, fin, and sperm whale. The Permit and 
Conservation Division requested initiation of section 7 consultation on 
April 4, 2023 with GARFO on the issuance of the CVOW-C regulations and 
the associated 5-year LOA under section 101(a)(5)(A) of the MMPA.
    NMFS issued a Biological Opinion on September 19, 2023 concluding 
that the promulgation of the rule and issuance of LOAs thereunder is 
not likely to jeopardize the continued existence of threatened and 
endangered species under NMFS' jurisdiction and is not likely to result 
in the destruction or adverse modification of designated or proposed 
critical habitat. The Biological Opinion is available at https://repository.library.noaa.gov/view/noaa/55495.
    Dominion Energy is required to abide by the promulgated 
regulations, as well as the reasonable and prudent measures and terms 
and conditions of the

[[Page 4457]]

Biological Opinion and Incidental Take Statement, as issued by NMFS.

National Environmental Policy Act (NEPA)

    To comply with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and NOAA Administrative Order 216-6A, NMFS must 
evaluate our proposed action (i.e., promulgation of regulation) and 
alternatives with respect to potential impacts on the human 
environment. NMFS participated as a cooperating agency on the BOEM 
final Environmental Impact Statement (FEIS) for the CVOW-C Project 
offshore Virginia (2023 CVOW-C FEIS), which was finalized on September 
29, 2023, and is available at https://www.boem.gov/renewable-energy/state-activities/coastal-virginia-offshore-wind-commercial-project-final. In accordance with 40 CFR 1506.3, NMFS independently reviewed 
and evaluated the 2023 CVOW-C FEIS and determined that it is adequate 
and sufficient to meet our responsibilities under NEPA for the 
promulgation of this rule and issuance of the associated LOA. NMFS, 
therefore, has adopted the 2023 CVOW-C FEIS through a joint Record of 
Decision (ROD) with BOEM. The joint ROD for adoption of the 2023 CVOW-C 
FEIS and promulgation of this final rule and subsequent issuance of a 
LOA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Executive Order 12866

    The Office of Management and Budget has determined that this rule 
is not significant for purposes of Executive Order 12866.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et 
seq.), the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the Paperwork Reduction Act (PRA) unless that collection of 
information displays a currently valid Office of Management and Budget 
(OMB) control number. These requirements have been approved by OMB 
under control number 0648-0151 and include applications for 
regulations, subsequent LOA, and reports. Send comments regarding any 
aspect of this data collection, including suggestions for reducing the 
burden, to NMFS.

Coastal Zone Management Act (CZMA)

    The Coastal Zone Management Act requires that any applicant for a 
required Federal license or permit to conduct an activity, within the 
coastal zone or within the geographic location descriptions (i.e., 
areas outside the coastal zone in which an activity would have 
reasonably foreseeable coastal effects), affecting any land or water 
use or natural resource of the coastal zone be consistent with the 
enforceable policies of a state's federally approved coastal management 
program. NMFS determined that Dominion Energy's application for an 
incidental take regulations is an unlisted activity and, thus, is not 
subject to Federal consistency requirements in the absence of the 
receipt and prior approval of an unlisted activity review request from 
the state by the Director of NOAA's Office for Coastal Management. 
Pursuant to 15 CFR 930.54, NMFS published notice of receipt of Dominion 
Energy's application in the Federal Register on September 15, 2022 (87 
FR 56634) and published notice of the proposed rule on May 4, 2023 (88 
FR 28656). The Commonwealth of Virginia did not request approval from 
the Director of NOAA's Office for Coastal Management to review Dominion 
Energy's application as an unlisted activity, and the time period for 
making such request has expired. Therefore, NMFS has determined the 
incidental take authorization is not subject to Federal consistency 
review.

Waiver of Delay in Effective Date

    The Assistant Administrator for Fisheries has determined that there 
is a sufficient basis under the Administrative Procedure Act (APA) to 
waive the 30-day delay in the effective date of the measures contained 
in the final rule. Section 553 of the APA provides that the required 
publication or service of a substantive rule shall be made not less 
than 30 days before its effective date with certain exceptions, 
including (1) for a substantive rule that relieves a restriction or (2) 
when the agency finds and provides good cause for foregoing delayed 
effectiveness (5 U.S.C 553(d)(1), (d)(3)). Here, the issuance of 
regulations under section 101(a)(5)(A) of the MMPA is a substantive 
action that relieves the statutory prohibition on the taking of marine 
mammals, specifically, the incidental taking of marine mammals 
associated with Dominion Energy's specified activities during the 
construction of the CVOW-C Project offshore of Virginia. Until the 
effective date of these regulations, Dominion Energy is prohibited from 
taking marine mammals incidental to the Project.
    In addition, good cause exists for waiving the delay in effective 
date. Dominion Energy plans to conduct HRG surveys in early February 
2024. Delays in this activity will impact construction activity 
sequencing and potentially vessel and other service procurement and 
availability. Moreover, offshore wind projects, such as the CVOW-C 
Project, that are developed to generate renewable energy have great 
societal and economic importance, and delays in completing the project 
are contrary to the public interest.
    Finally, Dominion Energy has informed NMFS that it does not require 
30 days to prepare for implementation of the regulations and requests 
that this final rule take effect on or before February 5, 2024. For 
these reasons, the subject regulations will be made immediately 
effective upon publication.

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: January 4, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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

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

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


0
2. Add subpart DD, consisting of Sec. Sec.  217.290 through 217.299, to 
read as follows:

[[Page 4458]]

Subpart DD--Taking Marine Mammals Incidental to the Coastal Virginia 
Offshore Wind Commercial Project Offshore of Virginia
Sec.
217.290 Specified activity and specified geographical region.
217.291 Effective dates.
217.292 Permissible methods of taking.
217.293 Prohibitions.
217.294 Mitigation requirements.
217.295 Monitoring and reporting requirements.
217.296 Letter of Authorization.
217.297 Modifications of Letter of Authorization.
217.298-217.299 [Reserved]

Subpart DD--Taking Marine Mammals Incidental to the Coastal 
Virginia Offshore Wind Commercial Project Offshore of Virginia


Sec.  217.290  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply to activities associated with 
the Coastal Virginia Offshore Wind Commercial Project (hereafter 
referred to as the ``Project'') by the Virginia Electric and Power 
Company, doing business as Dominion Energy Virginia (hereafter referred 
to as ``LOA Holder''), and those persons it authorizes or funds to 
conduct activities on its behalf in the area outlined in paragraph (b) 
of this section. Requirements imposed on the 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 0483 
Commercial Lease of Submerged Lands for Renewable Energy Development, 
one export cable route, and one sea-to-shore transition point located 
at the State Military Reservation in Virginia Beach, Virginia.
    (c) The specified activities are vibratory and impact pile driving 
of wind turbine generator (WTGs) and offshore substation (OSSs) 
foundations; vibratory pile driving (install and subsequently removal) 
of cofferdams; impact pile driving (install and subsequently removal) 
of goal posts; fishery and ecological monitoring surveys; placement of 
scour protection; trenching, laying, and burial activities associated 
with the installation of the export cable from OSSs to shore-based 
converter stations and inter-array cables between turbines; high-
resolution geophysical (HRG) site characterization surveys; vessel 
transit within the specified geographical region to transport crew, 
supplies, and materials; and WTG operation.


Sec.  217.291  Effective dates.

    The regulations in this subpart are effective from February 5, 
2024, through February 4, 2029.


Sec.  217.292  Permissible methods of taking.

    Under a LOA, issued pursuant to Sec. Sec.  216.106 and 217.296, LOA 
Holder and those persons it authorizes or funds to conduct activities 
on its behalf may incidentally, but not intentionally, take marine 
mammals within BOEM Lease Area OCS-A 0483 Commercial Lease of Submerged 
Lands for Renewable Energy Development, along export cable routes, and 
at the sea-to-shore transition point located at the State Military 
Reservation in Virginia Beach, Virginia in the following ways, provided 
LOA Holder is in complete compliance with all terms, conditions, and 
requirements of the regulations in this subpart and the appropriate 
LOA:
    (a) By Level B harassment associated with the acoustic disturbance 
of marine mammals by impact and vibratory pile driving (WTG and OSS 
foundation installation), impact pile driving of goal posts, vibratory 
pile driving of temporary cofferdams, and HRG site characterization 
surveys; and
    (b) By Level A harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving WTG and OSS 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 
stocks:

                        Table 1 to Paragraph (d)
------------------------------------------------------------------------
      Marine mammal species         Scientific name          Stock
------------------------------------------------------------------------
North Atlantic right whale......  Eubalaena           Western North
                                   glacialis.          Atlantic.
Fin whale.......................  Balaenoptera        Western North
                                   physalus.           Atlantic.
Humpback whale..................  Megaptera           Gulf of Maine.
                                   novaeangliae.
Minke whale.....................  Balaenoptera        Canadian Eastern
                                   acutorostrata.      Coastal.
Sei whale.......................  Balaenoptera        Nova Scotia.
                                   borealis.
Sperm whale.....................  Physeter            North Atlantic.
                                   macrocephalus.
Pygmy sperm whale...............  Kogia breviceps...  Western North
                                                       Atlantic.
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.
                                                      Southern Migratory
                                                       Coastal.
Clymene dolphin.................  Stenella clymene..  Western North
                                                       Atlantic.
Common dolphin..................  Delphinus delphis.  Western North
                                                       Atlantic.
False killer whale..............  Pseudorca           Western North
                                   crassidens.         Atlantic.
Melon-headed whale..............  Peponocephala       Western North
                                   electra.            Atlantic.
Long-finned pilot whale.........  Globicephala melas  Western North
                                                       Atlantic.
Short-finned pilot whale........  Globicephala        Western North
                                   macrorhynchus.      Atlantic.
Pantropical spotted dolphin.....  Stenella attenuata  Western North
                                                       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.  217.293  Prohibitions.

    Except for the takings described in Sec.  217.292 and authorized by 
an LOA issued under Sec. Sec.  217.296 or 217.297, it is unlawful for 
any person to do any of the following in connection with the activities 
described in this subpart:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  217.296 
or 217.297;

[[Page 4459]]

    (b) Take any marine mammal not specified in Sec.  217.292(d);
    (c) Take any marine mammal specified in the LOA in any manner other 
than as specified in the LOA; or
    (d) Take any marine mammal specified in Sec.  217.292(d), after 
NMFS determines such taking results in more than a negligible impact on 
the species or stocks of such marine mammals.


Sec.  217.294  Mitigation requirements.

    When conducting the activities identified in Sec.  217.290(c) 
within the area described in Sec.  217.290(b), LOA Holder must 
implement the mitigation measures contained in this section and any LOA 
issued under Sec. Sec.  217.296 or 217.297. These mitigation measures 
include, but are not limited to:
    (a) General conditions. LOA Holder must comply with the following 
general measures:
    (1) A copy of any issued LOA must be in the possession of LOA 
Holder and its designees, all vessel operators, visual protected 
species observers (PSOs), passive acoustic monitoring (PAM) operators, 
pile driver operators, and any other relevant designees operating under 
the authority of the issued LOA;
    (2) LOA Holder must conduct training for construction, survey, and 
vessel personnel and the marine mammal monitoring team (PSO and PAM 
operators) prior to the start of all in-water construction activities 
in order to explain responsibilities, communication procedures, marine 
mammal detection and identification, mitigation, monitoring, and 
reporting requirements, safety and operational procedures, and 
authorities of the marine mammal monitoring team(s). This training must 
be repeated for new personnel who join the work during the project. A 
description of the training program must be provided to NMFS at least 
60 days prior to the initial training before in-water activities begin. 
Confirmation of all required training must be documented on a training 
course log sheet and reported to NMFS Office of Protected Resources 
prior to initiating project activities;
    (3) Prior to and when conducting any in-water construction 
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., 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 detection by a PSO 
or acoustic detection by PAM operators at any distance (where 
applicable for the specified activities) 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;
    (7) Any PSO has the authority to call for a delay or shutdown of 
project activities. If a delay to commencing an activity is called for 
by a PSO, LOA Holder must take the required mitigative action. If a 
shutdown of an activity is called for by a PSO, 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 and the activity 
operator or between the Lead PSO and another PSO regarding delays or 
shutdowns must only be discussed after the mitigative action has 
occurred;
    (8) Any marine mammals observed within a clearance or shutdown zone 
must be allowed to remain in the area (i.e., must leave of their own 
volition) prior to commencing pile driving activities or HRG surveys;
    (9) 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 clearance zone prior to beginning a specified activity, 
the activity must be delayed. If an activity is ongoing and 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 
shutdown zone, the activity must be shut down (i.e., cease) 
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 the clearance or shutdown zones and is on a path 
away from the applicable zone or after 15 minutes with no further 
sightings for small odontocetes and pinnipeds or 30 minutes with no 
further sightings for all other species;
    (10) For in-water construction heavy machinery activities listed in 
Sec.  217.290(c), if a marine mammal is on a path towards or comes 
within 10 meters (m; 32.8 feet (ft)) 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;
    (11) 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;
    (12) By accepting the LOA, LOA Holder consents to on-site 
observation and inspections by Federal agency personnel (including NOAA 
personnel) during activities described in this subpart, for the 
purposes of evaluating the implementation and effectiveness of measures 
contained within the LOA and this subpart; and
    (13) 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 while in the specified 
geographic region, unless an emergency situation presents a threat to 
the health, safety, or life of a person, or when a vessel is actively 
engaged in emergency rescue or response duties, including vessel-in-
distress or environmental crisis response, and requires speeds in 
excess of 10 kn (11.5 miles per hour (mph)) to fulfill those 
responsibilities. An emergency is defined as a serious event that 
occurs without warning and requires immediate action to avert, control, 
or remedy harm. Speed over

[[Page 4460]]

ground will be used to measure all vessel speeds:
    (1) Prior to the start of the Project's activities involving 
vessels, all vessel personnel 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 and 
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 vessel personnel's training and 
understanding of the Incidental Take Authorization (ITA) requirements 
must be documented on a training course log sheet and reported to NMFS 
within 30 days of completion of training;
    (2) All vessel operators, operating at any speed and regardless of 
their vessel's size, must slow down, stop their vessel, or alter course 
to avoid striking any marine mammal;
    (3) All vessels, regardless of their size, operating at any speed 
must have a dedicated visual observer aboard and on duty at all times 
whose sole responsibility (i.e., must not have duties other than 
observing) is 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. These 
visual observers may be third-party observers (i.e., NMFS-approved 
PSOs; see Sec.  217.295(a)) or trained crew members (see (b)(1) of this 
section);
    (4) At the onset of transiting and continuously thereafter, vessel 
operators must monitor the U.S. Coast Guard VHF Channel 16, over which 
North Atlantic right whale sightings are broadcasted. At the onset of 
transiting and at least once every 4 hours, vessel operators and/or 
trained crew member(s) must also monitor the project's Situational 
Awareness System (if applicable), WhaleAlert, and relevant NOAA 
information systems such as the Right Whale Sighting Advisory System 
(RWSAS) for the presence of North Atlantic right whales;
    (5) Any large whale sighting by any project-personnel, including 
any LOA Holder staff, contractors, or vessel crew, must be immediately 
communicated to all project-associated vessel operators, PSOs, and PAM 
operators for situational awareness. Conversely, any large whale 
observation or detection via a sighting network (e.g., Mysticetus or 
similar software) by PSOs or PAM operators must be conveyed to vessel 
operators and crew. An ongoing large whale sighting log sheet must be 
maintained on each vessel and retained for vessel operator(s) review 
each day prior to first day's transit for awareness of recent 
sightings;
    (6) All vessel operators must abide by existing applicable vessel 
speed regulations (see 50 CFR 224.105). Nothing in this subpart exempts 
vessels from any other applicable marine mammal speed or approach 
regulations. Vessels must not travel over 10 kn from November 1st 
through April 30th, annually, in the specified geographic region, and 
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);
    (7) All vessel operators, regardless of their vessel's size, must 
immediately reduce vessel 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 by project personnel or via any 
of the monitoring systems (refer back to paragraph (b)(4) of this 
section) that vessel must operate at 10 kn (11.5 mph) or less for 24 
hours following the reported detection;
    (8) All vessels, regardless of size, must immediately reduce speed 
to 10 kn or less when any large whale, mother/calf pairs, or large 
assemblages of cetaceans are observed within 500 m (0.31 mi) of an 
underway vessel;
    (9) If vessel(s) are traveling at speeds greater than 10 kn (i.e., 
no speed restrictions are enacted) in the transit corridor (defined as 
from a port to the Lease Area or return), 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 detection within 
or approaching the transit corridor, all vessels in the transit 
corridor must travel at 10 kn or less for 24 hours following the 
detection. Each subsequent detection shall trigger a 24-hour reset. A 
slowdown in the transit corridor expires when there has been no further 
visual or acoustic detection in the transit corridor in the past 24 
hours;
    (10) All vessels must maintain a minimum separation distance of 500 
m from North Atlantic right whales. If underway, all vessels must steer 
a course away from any sighted North Atlantic right whale at 10 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 operator 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)(7) of this section;
    (11) All 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, the vessel must shift the engine(s) to neutral. Engines must 
not be engaged until the whale has moved outside of the vessel's path 
and beyond 100 m;
    (12) All 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, the 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;
    (13) When a marine mammal(s) is sighted while the 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

[[Page 4461]]

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);
    (14) All vessels underway must not divert or alter course to 
approach any marine mammal;
    (15) Vessel operators must check, daily, for information regarding 
the establishment of mandatory or voluntary vessel strike avoidance 
areas (i.e., DMAs, Seasonal Management Areas, Slow Zones) and any 
information regarding North Atlantic right whale sighting locations; 
and
    (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 in the vessel transit 
corridor. If a plan is not submitted and approved by NMFS prior to 
vessel operations, all project vessels must travel at speeds of 10 kn 
(11.5 mph) or less. LOA Holder must comply with any approved North 
Atlantic Right Whale Vessel Strike Avoidance Plan.
    (c) WTG and OSS foundation installation. The following requirements 
apply to pile driving activities associated with the installation of 
WTG and OSS foundations:
    (1) Vibratory and impact pile driving of foundation piles must not 
occur November 1st through April 30th, annually;
    (2) Monopiles must be no larger than 9.5-m in diameter, 
representing the larger end of the tapered 9.5/7.5-m monopile design. 
Pin piles must be no larger than 2.8-m in diameter. During all monopile 
and 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 4,000 
kilojoules (kJ) for monopile installations and 3,000 kJ for pin pile 
installation. No more than two monopile foundation or two pin piles for 
jacket foundations may be installed per day;
    (3) LOA Holder may initiate foundation pile driving (i.e., 
vibratory and impact) only from May 1st through October 31st, annually, 
in accordance with the NMFS-approved Pile Driving Plan;
    (4) LOA Holder must only perform foundation pile driving during 
daylight hours, defined as no later than 1.5 hours prior to civil 
sunset and no earlier than 1 hour after civil sunrise, and may only 
continue into darkness if stopping operations represents a risk to 
human health, safety, and/or pile stability and an Alternative 
Monitoring Plan has been approved by NMFS. No new pile driving may 
begin when pile driving continues into darkness;
    (5) LOA Holder must utilize a soft-start protocol at the beginning 
of foundation installation for each impact pile driving event. No soft-
start for vibratory pile driving is necessary;
    (6) Soft-start must occur at the beginning of impact driving and at 
any time following a cessation of impact pile driving of 30 minutes or 
longer;
    (7) LOA Holder must establish clearance and shutdown zones, which 
must be measured using the radial distance around the pile being 
driven. Clearance monitoring must begin 60 minutes immediately prior to 
initiation of pile driving. If a marine mammal is detected within or 
about to enter the applicable clearance zones 30 minutes prior to the 
beginning of pile driving (including soft start if impact pile driving) 
or during pile driving, pile driving must be delayed or shutdown until 
the animal has been visually observed exiting the clearance zone or 
until a specific time period has elapsed with no further sightings. The 
specific time periods are 15 minutes for small odontocetes and 
pinnipeds, and 30 minutes for all other species;
    (8) For North Atlantic right whales, any visual observation or 
acoustic detection must trigger a delay to the commencement of pile 
driving. The clearance zone may only be declared clear if no North 
Atlantic right whale acoustic or visual detections have occurred within 
the clearance zone during the 60-minute monitoring period;
    (9) LOA Holder must deploy at least two functional noise abatement 
systems that reduce noise levels to the modeled harassment isopleths, 
assuming 10-dB attenuation, during all foundation pile driving:
    (i) At least a double bubble curtain must 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 must ensure 100-percent seafloor contact;
    (iv) No parts of the ring or other objects may prevent full 
seafloor contact with a bubble curtain ring;
    (v) Construction contractors must train personnel in the proper 
balancing of airflow to the bubble curtain ring. LOA Holder must 
provide NMFS Office of Protected Resources with a bubble curtain 
performance test and maintenance report to review within 72 hours after 
each pile using a bubble curtain is installed. Additionally, a full 
maintenance check (e.g., manually clearing holes) must occur prior to 
each pile being installed;
    (vi) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (c)(9) must occur prior to pile driving of 
foundation piles.
    (vii) For any noise mitigation device in addition to the bubble 
curtain, LOA Holder must inspect and carry out appropriate maintenance 
on the system and ensure the system is functioning properly prior to 
every pile driving event.
    (10) LOA Holder must utilize NMFS-approved PAM systems, as 
described in paragraph (c)(17) of this section. The PAM system 
components (i.e., acoustic buoys) must not be placed closer than 1 km 
(0.6 mi) to the pile being driven so that the activities do not mask 
the PAM system. LOA Holder must demonstrate and prove the detection 
range of the system they plan to deploy while considering potential 
masking from concurrent pile-driving and vessel noise. The PAM system 
must be able to detect a vocalization of North Atlantic right whales up 
to 10 km (6.2 mi);
    (11) LOA Holder must utilize PSO(s) and PAM operator(s), as 
described in Sec.  217.295(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 in lieu of one or two of the 
dedicated PSO vessels that provide similar marine mammal detection 
capabilities.
    (12) If a marine mammal is detected (visually or acoustically) 
entering or within the respective shutdown zone after pile driving has 
begun, the PSO must call for a shutdown of pile driving and LOA Holder 
must stop pile driving immediately, unless shutdown is not

[[Page 4462]]

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 
risk of pile refusal or pile instability. If pile driving is not shut 
down due to 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) (see 217.295(g));
    (13) A visual observation at any distance from a PSO or acoustic 
detection of a North Atlantic right whale triggers shutdown 
requirements under paragraph (c)(12) of this section. If pile driving 
has been shut down due to the presence of a North Atlantic right whale, 
pile driving may not restart until the North Atlantic right whale has 
neither been visually or acoustically detected for 30 minutes;
    (14) If pile driving has been shut down due to the presence of a 
marine mammal other than a North Atlantic right whale, pile driving 
must not restart until either the marine mammal(s) has voluntarily left 
the specific clearance zones and has been visually or acoustically 
confirmed beyond that clearance zone, or, when specific time periods 
have elapsed with no further sightings or acoustic detections have 
occurred. The specific time periods are 15 minutes for small 
odontocetes and pinnipeds, and 30 minutes for all other marine mammal 
species. In cases where these criteria are not met, pile driving may 
restart only if necessary to maintain pile stability at which time LOA 
Holder must use the lowest hammer energy practicable to maintain 
stability;
    (15) LOA Holder must conduct sound field verification (SFV) 
measurements during pile driving activities associated with the 
installation of, at minimum, the first three monopile foundations and 
for all three OSS foundations (for all 12 pin piles installed). SFV 
measurements must continue until at least three consecutive piles 
demonstrate noise levels are at or below those modeled, assuming 10 
decibels (dB) of attenuation. Subsequent SFV measurements are also 
required should larger piles be installed or if additional monopiles 
are driven that may produce louder sound fields than those previously 
measured (e.g., higher hammer energy, greater number of strikes, etc.). 
SFV measurements must be conducted as follows:
    (i) Measurements must be made at a minimum of four distances from 
the pile(s) being driven, along a single transect, in the direction of 
lowest transmission loss (i.e., projected lowest transmission loss 
coefficient), including, but not limited to, 750 m (2,460 ft) and three 
additional ranges, including, at least, the modeled Level B harassment 
isopleth assuming 10 dB attenuation. 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;
    (ii) The recordings must be continuous throughout the duration of 
all pile driving of each foundation;
    (iii) The SFV measurement systems must have a sensitivity 
appropriate for the expected sound levels from pile driving received at 
the nominal ranges throughout the installation of the pile. The 
frequency range of SFV measurement systems must cover the range of at 
least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems 
must be designed to have omnidirectional sensitivity so that the 
broadband received level of all pile driving exceeds the system noise 
floor by at least 10 dB. The dynamic range of the SFV measurement 
system must be sufficient such that at each location, and the signals 
avoid poor signal-to-noise ratios for low amplitude signals and avoid 
clipping, nonlinearity, and saturation for high amplitude signals;
    (iv) All hydrophones used in SFV measurements systems are required 
to have undergone a full system, traceable laboratory calibration 
conforming to International Electrotechnical Commission (IEC) 60565, or 
an equivalent standard procedure, from a factory or accredited source 
to ensure the hydrophone receives accurate sound levels, at a date not 
to exceed 2 years before deployment. Additional in-situ calibration 
checks using a pistonphone are required to be performed before and 
after each hydrophone deployment. If the measurement system employs 
filters via hardware or software (e.g., high-pass, low-pass, etc.), 
which is not already accounted for by the calibration, the filter 
performance (i.e., the filter's frequency response) must be known, 
reported, and the data corrected before analysis.
    (v) LOA Holder must be prepared with additional equipment 
(hydrophones, recording devices, hydrophone calibrators, cables, 
batteries, etc.), which exceeds the amount of equipment necessary to 
perform the measurements, such that technical issues can be mitigated 
before measurement;
    (vi) LOA Holder must submit interim reports within 48 hours after 
each foundation is measured (see Sec.  217.295(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 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, 
modified, and/or alternative noise attenuation measures or operational 
changes that present a reasonable likelihood of reducing sound levels 
to the modeled distances 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. In this 
situation, LOA Holder would be required to provide a proposed 
monitoring plan for expanded zones (per the Biological Opinion) that 
would detail the proposed expanded zones and any additional monitoring 
and mitigation that would be implemented. If the harassment zones are 
expanded beyond an additional 1,500 m (0.93 mi), additional PSOs must 
be deployed on additional platforms, with each observer responsible for 
maintaining watch in no more than 180 degrees and of an area with a 
radius no greater than 1,500 m.
    (viii) LOA Holder must optimize the sound attenuation systems 
(e.g., ensure hose maintenance, pressure testing, etc.) to, at least, 
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;
    (ix) If, after additional measurements conducted pursuant to 
requirements of paragraph (15)(vii) of this section, acoustic 
measurements indicate that ranges to isopleths corresponding to the 
Level A harassment and Level B harassment thresholds are less than the 
ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder 
may request to NMFS Office of Protected Resources a modification of the 
clearance and shutdown zones. For NMFS Office of Protected Resources to 
consider a modification request for reduced zone sizes, LOA Holder must 
have conducted SFV measurements on

[[Page 4463]]

an additional three WTG monopile foundations and ensure that subsequent 
foundations would be installed under conditions that are predicted to 
produce smaller harassment zones than those modeled assuming 10-dB of 
attenuation;
    (x) LOA Holder must conduct SFV measurements upon commencement of 
turbine operations to estimate turbine operational source levels and 
transmission loss rates, in accordance with a NMFS-approved Foundation 
Installation Pile Driving SFV Plan. SFV must be conducted in the same 
manner as previously described in paragraph (c)(15) of this section, 
with appropriate adjustments to measurement distances, number of 
hydrophones, and hydrophone sensitivities being made, as necessary; and
    (xi) LOA Holder must submit a SFV Plan to NMFS Office of Protected 
Resources for review and approval at least 180 days prior to planned 
start of foundation installation activities and abide by the Plan if 
approved. At minimum, the SFV Plan must describe how LOA Holder would 
ensure that the first three monopile foundation installation sites 
selected for SFV measurements are representative of the rest of the 
monopile installation sites such that future pile installation events 
are anticipated to produce similar sound levels to those piles 
measured. In the case that these sites/scenarios are not determined to 
be representative of all other pile installation sites, LOA Holder must 
include information in the SFV Plan on how additional sites/scenarios 
would be selected for SFV measurements. This SFV Plan must also 
describe approaches that LOA Holder could take to adjust noise 
attenuation systems or add systems in the case that any SFV 
measurements obtained demonstrate that noise levels are above those 
modeled (assuming 10 dB of attenuation). Furthermore, the SFV Plan must 
also include how operational noise would be monitored. Operational 
parameters (e.g., direct drive information, turbine rotation rate) as 
well as sea state conditions and information on nearby anthropogenic 
activities (e.g., vessels transiting or operating in the area) must be 
reported. Additionally, 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 
foundation 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, at a minimum: the final pile driving project design 
(e.g., number and type of piles, hammer type, noise abatement systems, 
anticipated start date, etc.) and a description of all monitoring 
equipment and PAM operator and PSO protocols (including number and 
location of PSOs and PAM operators) for all foundation 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 and abide by the Plan if approved. The PAM Plan must include 
a description of all proposed PAM equipment, address how the proposed 
passive acoustic monitoring must follow standardized measurement, 
processing methods, reporting metrics, and metadata standards for 
offshore wind. The Plan must describe all proposed PAM equipment, 
procedures, and protocols including proof that vocalizing North 
Atlantic right whales will be detected within the clearance and 
shutdown zones. No pile installation can occur if LOA Holder's PAM Plan 
does not receive approval from NMFS Office of Protected Resources and 
NMFS Greater Atlantic Regional Fisheries Office Protected Resources 
Division.
    (d) Cofferdam and goal post installation and removal. The following 
requirements apply to the installation and removal of cofferdams and 
goal posts at the cable landfall construction sites:
    (1) Installation and removal of cofferdams and goal posts must not 
occur during nighttime hours (defined as the hours between 1.5 hours 
prior to civil sunset and 1 hour after civil sunrise);
    (2) LOA Holder must establish and implement clearance zones for the 
installation and removal of cofferdams and goal posts using visual 
monitoring. These zones must be measured using the radial distance from 
the cofferdam and goal post being installed and/or removed;
    (3) LOA Holder must utilize PSO(s), as described in Sec.  
217.295(d). At least two on-duty PSOs must monitor for marine mammals 
at least 30 minutes before, during, and 30 minutes after vibratory and 
impact pile driving associated with cofferdam and casing pipe 
installation, respectively;
    (4) If a marine mammal(s) is observed entering or is observed 
within the clearance zones, before vibratory or impact pile driving has 
begun, the activity must not commence until the animal(s) has exited 
the zone or a specific amount of time has elapsed since the last 
sighting. The specific time periods are 15 minutes for small 
odontocetes and pinnipeds and 30 minutes for all other marine mammal 
species;
    (5) If a marine mammal is observed entering or within the 
respective shutdown zone after vibratory or impact pile driving has 
begun, the PSO must call for a shutdown of pile driving. 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 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 annual 
report (as described in Sec.  217.295(g)). In cases where shutdown is 
not feasible, 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;
    (6) Pile driving must not restart until either the marine mammal(s) 
has voluntarily left the specific clearance zones and has been visually 
or acoustically confirmed beyond that clearance zone, or, when specific 
time periods have elapsed with no further sightings or acoustic 
detections have occurred. The specific time periods are 15 minutes for 
small odontocetes and pinnipeds and 30 minutes for all other marine 
mammal species; and
    (7) LOA Holder must employ a soft-start for all impact pile driving 
of goal posts. Soft start requires contractors to provide an initial 
set of three strikes at reduced energy, followed by a 30-second waiting 
period, then two subsequent reduced-energy strike sets.
    (e) HRG surveys. The following requirements apply to HRG surveys 
operating sub- bottom profilers (SBPs)

[[Page 4464]]

(i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse 
(CHIRPs)):
    (1) LOA Holder must establish and implement clearance and shutdown 
zones for HRG surveys using visual monitoring, as described in 
paragraph (c) of this section;
    (2) LOA Holder must utilize PSO(s), as described in Sec.  
217.295(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) Prior to starting the survey and after receiving confirmation 
from the PSOs that the clearance zone is clear of any marine mammals, 
LOA Holder is required to ramp-up acoustic sources to half power for 5 
minutes prior to commencing full power, unless the equipment operates 
on a binary on/off switch (in which case ramp-up is not required). LOA 
Holder must also ensure visual clearance zones are fully visible (e.g., 
not obscured by darkness, rain, fog, etc.) and clear of marine mammals, 
as determined by the Lead PSO, for at least 30 minutes immediately 
prior to the initiation of survey activities using acoustic sources.
    (6) Ramp-up and activation must be delayed if a marine mammal(s) 
enters its respective shutdown zone. Ramp-up and activation may only be 
reinitiated if the animal(s) has been observed exiting its respective 
shutdown zone or until 15 minutes for small odontocetes and pinnipeds, 
and 30 minutes for all other species, has elapsed with no further 
sightings;
    (7) Prior to a ramp-up procedure starting or activating acoustic 
sources, the acoustic source operator (operator) must notify a 
designated PSO of the planned start of ramp-up as agreed upon with the 
Lead PSO. The notification time should not be less than 60 minutes 
prior to the planned ramp-up or activation in order to allow the PSOs 
time to monitor the clearance zone(s) for 30 minutes prior to the 
initiation of ramp-up or activation (pre-start clearance). During this 
30-minute pre-start clearance period, the entire applicable clearance 
zones must be visible, except as indicated in paragraph (f)(12) of this 
section;
    (8) Ramp-ups must be scheduled so as to minimize the time spent 
with the source activated;
    (9) 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;
    (10) 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;
    (11) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up or acoustic surveys may not begin until 
the animal(s) has been observed voluntarily exiting its respective 
clearance zone or until a specific time period has elapsed with no 
further sighting. The specific time period is 15 minutes for small 
odontocetes and pinnipeds, and 30 minutes for all other species;
    (12) 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 may 
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;
    (13) Once the survey has commenced, LOA Holder must shut down 
acoustic sources if a marine mammal enters a respective shutdown zone, 
except in cases when the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations may continue (i.e., 
no shutdown is required) so long as no marine mammals have been 
detected. The shutdown requirement does not apply to small delphinids 
of the following genera: Delphinus, Stenella, Lagenorhynchus, and 
Tursiops. If there is uncertainty regarding the identification of a 
marine mammal species (i.e., whether the observed marine mammal belongs 
to one of the delphinid genera for which shutdown is waived), the PSOs 
must use their best professional judgment in making the decision to 
call for a shutdown. Shutdown is required if a delphinid that belongs 
to a genus other than those specified in this paragraph (f)(13) of this 
section is detected in the shutdown zone;
    (14) If an acoustic source has been shut down due to the presence 
of a marine mammal, the use of an acoustic source may not commence or 
resume until the animal(s) has been confirmed to have left the Level B 
harassment zone or until a full 15 minutes (for small odontocetes and 
seals) or 30 minutes (for all other marine mammals) have elapsed with 
no further sighting;
    (15) LOA Holder must immediately shut down any acoustic source if a 
marine mammal is sighted entering or within its respective shutdown 
zones. If there is uncertainty regarding the identification of a marine 
mammal species (i.e., whether the observed marine mammal belongs to one 
of the delphinid genera for which shutdown is waived), the PSOs must 
use their best professional judgment in making the decision to call for 
a shutdown. Shutdown is required if a delphinid that belongs to a genus 
other than those specified in paragraph (f)(13) of this section is 
detected in the shutdown zone; and
    (16) 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: using trap/pot gear:
    (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 nautical mile 
(nmi (1.2 mi)) of the planned location and 15 minutes before gear 
deployment, then LOA

[[Page 4465]]

Holder and/or its cooperating institutions, contracted vessels, or 
commercially hired captains, as appropriate, must move the vessel away 
from the marine mammal to a different section of the sampling area. If, 
after moving on, marine mammals are still visible from the vessel, LOA 
Holder and its cooperating institutions, contracted vessels, or 
commercially hired captains must move again or skip the station;
    (3) If a marine mammal is at risk of interacting with deployed 
gear, 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) Unless using ropeless gear, 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 (3.5 mph);
    (8) All gear must be emptied as close to the deck/sorting area and 
as quickly as possible after retrieval;
    (9) 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;
    (10) 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;
    (11) All in-water survey gear, including buoys, must be properly 
labeled with the scientific permit number or identification as LOA 
Holder's research gear. All labels and markings on the gear, buoys, and 
buoy lines must also be compliant with the applicable regulations, and 
all buoy markings must comply with instructions received by the NOAA 
Greater Atlantic Regional Fisheries Office Protected Resources 
Division;
    (12) All survey gear must be removed from the water whenever not in 
active survey use (i.e., no wet storage); and
    (13) All reasonable efforts, that do not compromise human safety, 
must be undertaken to recover gear.


Sec.  217.295  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. All PSOs and PAM 
operators should demonstrate good standing and consistently good 
performance of all assigned duties;
    (3) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving targets 
on the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable); ability to conduct field 
observations and collect data according to the assigned protocols; 
sufficient training, orientation, or experience with the construction 
operation to provide for personal safety during observations; writing 
skills sufficient to document observations, including but not limited 
to, the number and species of marine mammals observed, the dates and 
times of when in-water construction activities were conducted, the 
dates and time when in-water construction activities were suspended to 
avoid potential incidental take of marine mammals from construction 
noise within a defined shutdown zone, and marine mammal behavior; and 
the ability to communicate orally, by radio, or in-person, with project 
personnel to provide real-time information on marine mammals observed 
in the area;
    (4) All PSOs must be trained in northwestern Atlantic Ocean marine 
mammal identification and behaviors and must be able to conduct field 
observations and collect data according to assigned protocols. 
Additionally, PSOs must have the ability to work with all required and 
relevant software and equipment necessary during observations (as 
described in paragraphs (b)(5) and (b)(6) of this section);
    (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). A 
conditionally approved PSO or PAM operator must be paired with an 
unconditionally approved PSO or PAM operator;
    (7) At least one on-duty PSO for each activity (e.g., foundation 
installation, cable landfall construction, and HRG surveys) must be 
designated as the Lead PSO. The Lead PSO must meet the minimum 
requirements described in 217.295(a)(2) through (5) and have a minimum 
of ninety days of at-sea experience working in the Northwest Atlantic 
Ocean and would be required to have no more than eighteen months 
elapsed since the conclusion of their last at-sea experience;

[[Page 4466]]

    (8) 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 must be unconditionally approved;
    (9) LOA Holder must submit NMFS previously approved PSOs and PAM 
operators to NMFS Office of Protected Resources for review and 
confirmation of their approval for specific roles at least 30 days 
prior to commencement of the activities requiring PSOs/PAM operators or 
15 days prior to when new PSOs/PAM operators are required after 
activities have commenced;
    (10) For prospective PSOs and PAM operators not previously 
approved, or for PSOs and PAM operators whose approval is not current, 
LOA Holder must submit resumes for approval at least 60 days prior to 
PSO and PAM operator use. Resumes must include information related to 
relevant education, experience, and training, including dates, 
duration, location, and description of prior PSO or PAM operator 
experience. Resumes must be accompanied by relevant documentation of 
successful completion of necessary training;
    (11) PAM operators are responsible for obtaining NMFS approval. To 
be approved as a PAM operator, the person must meet the following 
qualifications: The PAM operator must demonstrate that they have prior 
experience with real-time acoustic detection systems and/or have 
completed specialized training for operating PAM systems and detecting 
and identifying Atlantic Ocean marine mammals sounds, in particular: 
North Atlantic right whale sounds, humpback whale sounds, and how to 
deconflict them from similar North Atlantic right whale sounds, and 
other co-occurring species' sounds in the area including sperm whales; 
must be able to distinguish between whether a marine mammal or other 
species sound is detected, possibly detected, not detected and similar 
terminology must be used across companies/projects; where localization 
of sounds or deriving bearings and distance are possible, the PAM 
operators need to have demonstrated experience in using this technique; 
PAM operators must be independent observers (i.e., not construction 
personnel); PAM operators must demonstrate experience with relevant 
acoustic software and equipment; PAM operators must have the 
qualifications and relevant experience/training to safely deploy and 
retrieve equipment and program the software, as necessary; PAM 
operators must be able to test software and hardware functionality 
prior to operation; and PAM operators must have evaluated their 
acoustic detection software using the PAM Atlantic baleen whale 
annotated data set available at National Centers for Environmental 
Information (NCEI) and provide evaluation/performance metric;
    (12) PAM operators must be able to review and classify acoustic 
detections in real-time (prioritizing North Atlantic right whales and 
noting detection of other cetaceans) during the real-time monitoring 
periods;
    (13) PSOs may work as PAM operators and vice versa, pending NMFS-
approval; however, they may only perform one role at any one time and 
must not exceed work time restrictions, which must be tallied 
cumulatively; and
    (14) All PSOs and PAM operators must complete a Permits and 
Environmental Compliance Plan training and a 2-day refresher session 
that must be held with the PSO provider and Project compliance 
representative(s) prior to the start of in-water project activities 
(e.g., HRG survey, foundation installation, cable landfall activities 
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 all 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) 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, but must 
have the appropriate equipment (i.e., computer station equipped with a 
data collection software system and acoustic data analysis software) 
available wherever they are stationed, and data or data products must 
be streamed in real-time or in near real-time to allow PAM operators to 
provide assistance to on-duty visual PSOs. During foundation 
installation activities, the PAM operator(s) must monitor to and past 
the clearance zone for large whales and would assist PSOs in ensuring 
full coverage of the clearance and shutdown zones;
    (3) 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;
    (4) 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, (e.g., 
Mysticetus or similar system) who must be responsible for requesting 
that the designated crewmember implement the necessary mitigation 
procedures (i.e., delay);
    (5) 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.  217.294(c)(17);
    (6) 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;
    (7) 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

[[Page 4467]]

schedule of more than 12 hours in a 24-hour period. If the schedule 
includes PSOs and PAM operators on-duty for 2-hour shifts, a minimum 1-
hour break between watches must be allowed; and
    (8) During daylight hours when 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.
    (c) PSO and PAM operator requirements during WTG and OSS foundation 
installation. The following measures apply to PSOs and PAM operators 
during WTG and OSS 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. If PSOs cannot visually monitor the 
minimum visibility zone prior to pile driving at all times using the 
equipment described in paragraphs (b)(5) and (6) 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 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 foundation 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.
    (d) PSO requirements during cable landfall construction. The 
following measures apply to PSOs during cofferdam and goal post 
installation and removal and must be implemented by LOA Holder:
    (1) At least two PSOs must be on active duty during all activities 
related to the installation and removal of cofferdams and goal posts; 
and
    (2) PSOs must monitor the clearance zone for the presence of marine 
mammals for 30 minutes before, throughout the installation of the sheet 
piles and casing pipe and for 30 minutes after all pile driving 
activities have ceased. Sheet pile or casing pipe installation must 
only commence when visual clearance zones are fully visible (e.g., not 
obscured by darkness, rain, fog, etc.) and clear of marine mammals, as 
determined by the Lead PSO, for at least 30 minutes immediately prior 
to initiation of pile driving.
    (e) PSO requirements during HRG surveys. The following measures 
apply to PSOs during HRG surveys using Compressed High Intensity 
Radiated Pulse (CHIRPs), boomers, and sparkers 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 active 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 (unless using ropeless gear), and for 15 
minutes after haul back.
    (g) Reporting. LOA Holder must comply with the following reporting 
measures:
    (1) Prior to initiation of any specified activities, LOA Holder 
must demonstrate in a report submitted to NMFS Office of Protected 
Resources that all required training for LOA Holder personnel 
(including the vessel crews, vessel captains, PSOs, and PAM operators) 
has been completed;
    (2) LOA Holder must use a standardized reporting system during the 
effective period of the LOA. All data collected related to the Project 
must be recorded using industry-standard software that is installed on 
field laptops and/or tablets. Unless stated otherwise, all reports must 
be submitted to NMFS Office of Protected Resources 
([email protected]), dates must be in MM/DD/YYYY 
format, and location information must be provided in Decimal Degrees 
and with the coordinate system information (e.g., NAD83, WGS84, etc.);
    (3) For all visual monitoring efforts and marine mammal sightings, 
the following information must be collected 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., 
pile driving, construction surveys), 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

[[Page 4468]]

driving, active pile driving, etc.); the marine mammal occurrence in 
Level A harassment or Level B harassment zones; the description of any 
mitigation-related action implemented, or mitigation-related actions 
called for but not implemented, in response to the sighting (e.g., 
delay, shutdown, etc.) and time and location of the action; other human 
activity in the area, and; other applicable information, as required in 
any LOA issued under Sec.  217.296;
    (4) If a marine mammal is acoustically detected during PAM 
monitoring, the following information must be recorded and reported to 
NMFS: location of hydrophone (latitude and longitude; in Decimal 
Degrees) and site name; bottom depth and depth of recording unit (in 
meters); recorder (model & manufacturer) and platform type (i.e., 
bottom-mounted, electric glider, etc.), and instrument ID of the 
hydrophone and recording platform (if applicable); time zone for sound 
files and recorded date/times in data and metadata (in relation to 
Universal Coordinated Time (UTC); i.e., Eastern Standard Time (EST) 
time zone is UTC-5); duration of recordings (start/end dates and times; 
in International Organization for Standardization (ISO) 8601 format, 
yyyy-mm-ddTHH:MM:SS.sssZ); deployment/retrieval dates and times (in ISO 
8601 format); recording schedule (must be continuous); hydrophone and 
recorder sensitivity (in dB re. 1 microPascal ([mu]Pa)); calibration 
curve for each recorder; bandwidth/sampling rate (in Hz); sample bit-
rate of recordings; and detection range of equipment for relevant 
frequency bands (in meters);
    (i) For each detection, the following information the following 
information must be noted: species identification (if possible); call 
type and number of calls (if known); temporal aspects of vocalization 
(date, time, duration, etc.; date times in ISO 8601 format); confidence 
of detection (detected, or possibly detected); comparison with any 
concurrent visual sightings; location and/or directionality of call (if 
determined) relative to acoustic recorder or construction activities; 
location of recorder and construction activities at time of call; name 
and version of detection or sound analysis software used, with protocol 
reference; minimum and maximum frequencies viewed/monitored/used in 
detection (in Hz); and name of PAM operator(s) on duty;
    (5) 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;
    (6) 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;
    (7) 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, 
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., foundation 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. The 
final annual report must be prepared and submitted within 30 calendar 
days following the receipt of any comments from NMFS on the draft 
report. If no comments are received from NMFS within 60 calendar days 
of NMFS' receipt of the draft report, the report must be considered 
final;
    (8) LOA Holder must submit its draft 5-year report to NMFS Office 
of Protected Resources on all visual and acoustic monitoring conducted 
within 90 calendar days of the completion of activities occurring under 
the LOA. A 5-year report must be prepared and submitted within 60 
calendar days following receipt of any NMFS Office of Protected 
Resources comments on the draft report. If no comments are received 
from NMFS Office of Protected Resources within 60 calendar days of NMFS 
Office of Protected Resources receipt of the draft report, the report 
shall be considered final;
    (9) LOA Holder must provide the initial results of the complete 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 any 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 acoustic isopleths, 
calculated using the maximum-over-depth L5 (95 percent exceedance 
level, maximum of both hydrophones) of the associated sound metric; 
comparison of modeled results assuming 10-dB attenuation against the

[[Page 4469]]

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;
    (10) LOA Holder must conduct abbreviated SFV for all foundation 
installations for which the complete SFV monitoring is not carried out, 
whereas a single acoustic recorder must be placed at an appropriate 
distance from the pile, in alignment with the completed Biological 
Opinion. All results must be included in the weekly reports. Any 
indications that distances to the identified Level A harassment and 
Level B harassment thresholds for marine mammals were exceeded must be 
addressed by LOA Holder, including an explanation of factors that 
contributed to the exceedance and corrective actions that were taken to 
avoid exceedance on subsequent piles;
    (11) The final results of all SFV measurements from each foundation 
installation must be submitted as soon as possible, but no later than 
90 days following completion of all annual SFV measurements. The final 
reports must include all details included in the interim report and 
descriptions of any notable occurrences, explanations for results that 
were not anticipated, or actions taken during foundation installation. 
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; range of 
transmission loss coefficients; the local environmental conditions, 
such as wind speed, transmission loss data collected on-site (or the 
sound velocity profile); baseline pre- and post-activity ambient sound 
levels (broadband and/or within frequencies of concern); a description 
of depth and sediment type, as documented in the Construction and 
Operation Plan (COP), at the recording and foundation installation 
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;
    (12) 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;
    (13) If a North Atlantic right whale is acoustically 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;
    (14) Full detection data, metadata, and location of recorders (or 
GPS tracks, if applicable) from all real-time hydrophones used for 
monitoring during construction must be submitted within 90 calendar 
days following completion of activities requiring PAM for mitigation 
via the International Organization for Standardization (ISO) standard 
metadata forms available on the NMFS Passive Acoustic Reporting System 
website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit the completed data 
templates to [email protected]. The full acoustic recordings 
from real-time systems must also be sent to the National Centers for 
Environmental Information (NCEI) for archiving within 90 days following 
completion of activities requiring PAM for mitigation. Submission 
details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
    (15) 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, in specific circumstances, including but not limited to the 
following:
    (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, the U.S. Coast Guard, 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 circumstances arise where calling NMFS is not 
possible, reports must be made to the U.S. Coast Guard via channel 16 
or through the WhaleAlert app (https://www.whalealert 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]), NMFS Office of Protected Resources,

[[Page 4470]]

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 a large whale other than a North Atlantic right whale is 
observed at any time by PSOs or project personnel, LOA Holder must 
report the sighting to the WhaleAlert app (https://www.whalealert. org/
);
    (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]); if in the 
Greater Atlantic region (Maine to Virginia), to NMFS Greater Atlantic 
Regional Fisheries Office (GARFO; [email protected], 
[email protected]); if in the Southeast region (North 
Carolina to Florida), to NMFS Southeast Regional Office (SERO; 
[email protected]); and to the U.S. Coast Guard, as soon as 
feasible but within 24-hours. 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; and
    (v) In the event of a vessel strike of a marine mammal by any 
vessel associated with the Project or if project activities cause a 
non-auditory injury or death of a marine mammal, LOA Holder must 
immediately report the incident to NMFS. If in the Greater Atlantic 
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding 
Hotline (866-755-6622) and if in the Southeast Region (North Carolina 
to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). 
Separately, LOA Holder must immediately report the incident to NMFS 
Office of Protected Resources ([email protected]) and, 
if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO 
([email protected], [email protected]) or, if 
in the Southeast region (North Carolina to Florida), NMFS SERO 
([email protected]). The report must include the time, date, 
and location of the incident; species identification (if known) or 
description of the animal(s) involved; vessel size and motor 
configuration (inboard, outboard, jet propulsion); vessel's speed 
leading up to and during the incident; vessel's course/heading and what 
operations were being conducted (if applicable); status of all sound 
sources in use; description of avoidance measures/requirements that 
were in place at the time of the strike and what additional measures 
were taken, if any, to avoid strike; environmental conditions (e.g., 
wind speed and direction, Beaufort sea state, cloud cover, visibility) 
immediately preceding the strike; estimated size and length of animal 
that was struck; description of the behavior of the marine mammal 
immediately preceding and following the strike; if available, 
description of the presence and behavior of any other marine mammals 
immediately preceding the strike; estimated fate of the animal (e.g., 
dead, injured but alive, injured and moving, blood or tissue observed 
in the water, status unknown, disappeared); and to the extent 
practicable, photographs or video footage of the animal(s). LOA Holder 
must immediately cease all on-water activities until the NMFS Office of 
Protected Resources is able to review the circumstances of the incident 
and determine what, if any, additional measures are appropriate to 
ensure compliance with the terms of the LOA. NMFS Office of Protected 
Resources may impose additional measures to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. LOA Holder may not 
resume their activities until notified by NMFS Office of Protected 
Resources; and
    (16) Any lost gear associated with the fishery surveys will be 
reported to the NOAA Greater Atlantic Regional Fisheries Office 
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. All 
reasonable efforts, that do not compromise human safety, must be 
undertaken to recover gear.


Sec.  217.296  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
LOA Holder must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed February 4, 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 an LOA, LOA Holder must 
apply for and obtain a modification of the LOA as described in Sec.  
217.297.
    (d) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (e) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under the regulations of this subpart.
    (f) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.


Sec.  217.297  Modifications of Letter of Authorization.

    (a) An LOA issued under Sec. Sec.  217.292 and 217.296 or this 
section for the activities identified in Sec.  217.290(a) shall be 
modified upon request by LOA Holder, provided that:
    (1) The specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for this subpart (excluding changes made 
pursuant to the adaptive management provision in paragraph (c)(1) of 
this section); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under this subpart were 
implemented.
    (b) For a LOA modification request by the applicant that includes 
changes to the activity or the mitigation, monitoring, or reporting 
(excluding changes made pursuant to the adaptive management provision 
in paragraph (c)(1) of this section), the LOA shall be modified, 
provided that:

[[Page 4471]]

    (1) NMFS 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 may publish a notice of proposed modified LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  217.292 and 217.296 or this 
section for the activities identified in Sec.  217.290(a) may be 
modified by NMFS under the following circumstances:
    (1) Through adaptive management, NMFS may modify (including delete, 
modify, or add to) the existing mitigation, monitoring, or reporting 
measures (after consulting with LOA Holder regarding the practicability 
of the modifications), if doing so creates a reasonable likelihood of 
more effectively accomplishing the goals of the mitigation and 
monitoring;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA 
include, but are not limited to:
    (A) Results from LOA Holder's monitoring(s);
    (B) Results from other marine mammals and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by the regulations in 
this subpart or subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) If NMFS determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in the LOA issued pursuant to Sec. Sec.  217.292 and 
217.296 or this section, an LOA may be modified without prior notice or 
opportunity for public comment. Notice would be published in the 
Federal Register within 30 days of the action.


Sec. Sec.  217.298-217.299  [Reserved]

[FR Doc. 2024-00297 Filed 1-22-24; 8:45 am]
BILLING CODE 3510-22-P