Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm Project Offshore New York, 45292-45401 [2024-09902]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 100 (Wednesday, May 22, 2024)]
[Rules and Regulations]
[Pages 45292-45401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09902]



[[Page 45291]]

Vol. 89

Wednesday,

No. 100

May 22, 2024

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm 
Project Offshore New York; Final Rule

Federal Register / Vol. 89 , No. 100 / Wednesday, May 22, 2024 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240501-0124]
RIN 0648-BL67


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm 
Project Offshore New York

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 Sunrise Wind, LLC (Sunrise Wind), a 50/50 joint venture 
between [Oslash]rsted North America, Inc. ([Oslash]rsted) and 
Eversource Investment, LLC, construction of the Sunrise Wind Offshore 
Wind Farm Project (hereafter known as the ``Project'') in Federal and 
State waters offshore New York, 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-0487 (Lease Area) and along one export cable route to sea-
to-shore transition points in Shirley, New York (collectively referred 
to as the ``Project Area''), over the course of 5 years (June 21, 
2024--June 20, 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 rule is effective from June 21, 2024, through June 20, 
2029.

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of Sunrise Wind's application and 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 (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 Sunrise Wind to 
incidentally take a small number of marine mammals from 16 species of 
marine mammals, comprising 16 stocks (7 stocks by Level A harassment 
and Level B harassment; 9 stocks by Level B harassment only), 
incidental to Sunrise Wind's 5 years of construction activities. 
Sunrise Wind did not request authorization for, and NMFS neither 
anticipates nor allows, take by serious injury or mortality incidental 
to the specified activities to be authorized under this final 
rulemaking.

Legal Authority for the Final Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated (when applicable), and public notice and an opportunity for 
public comment are provided.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). If such findings are made, NMFS must prescribe the 
permissible methods of taking, other means of effecting the least 
practicable adverse impact on the affected species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of the species 
or stocks for taking for certain subsistence uses (referred to as 
``mitigation''); and requirements pertaining to the monitoring and 
reporting of such takings.
    As noted above, Sunrise Wind did not request for authorization of, 
and NMFS neither anticipates nor allows, take by serious injury or 
mortality incidental to the specified activities to be authorized under 
this final rulemaking. 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 (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 Sunrise Wind's construction 
activities.

Summary of Major Provisions Within the Final Rule

    The major provisions of this final rule are:
     Allowing NMFS to authorize, under a LOA, the take of small 
numbers of

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marine mammals by Level A harassment and/or Level B harassment (50 CFR 
217.312) incidental to the Project and prohibiting take of such species 
or stocks in any manner not permitted (50 CFR 217.313) (e.g., mortality 
or serious injury);
     Establishing a seasonal moratorium for foundation impact 
pile driving from January 1 through April 30 annually and requirements 
to avoid, to the maximum extent practicable, foundation impact pile 
driving in December and to obtain NMFS prior approval to minimize 
impacts to the North Atlantic right whale (NARW) (Eubalaena glacialis);
     Establishing a seasonal moratorium on the detonation of 
unexploded ordnance or munitions and explosives of concern (UXO/MEC) 
from December 1 through April 30 annually to minimize impacts to NARW;
     Requirements for UXO/MEC detonations to only occur if all 
other means of removal are exhausted (i.e., As Low As Reasonably 
Practical (ALARP) risk mitigation procedure) and conducting UXO/MEC 
detonations during daylight hours only and limiting detonations to 1 
per 24-hour period;
     Conducting both visual and passive acoustic monitoring 
(PAM) by trained, NMFS-approved Protected Species Observers (PSOs) and 
PAM operators before, during, and after select in-water construction 
activities;
     Requiring training for all Project personnel to ensure 
marine mammal protocols and procedures are understood;
     Establishing 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, including a 
delay or shutdown of foundation impact pile driving and delay to UXO/
MEC detonation if a NARW is observed at any distance by PSOs or 
acoustically detected within certain distances;
     Establishing minimum visibility and PAM monitoring zones 
during foundation impact pile driving;
     Requiring use of at least two sound attenuation devices 
during all foundation impact pile driving installation activities and 
UXO/MEC detonations to reduce noise levels to those modeled assuming a 
broadband 10 decibel (dB) attenuation;
     Requiring sound field verification (SFV) monitoring during 
impact pile driving of foundation piles and during UXO/MEC detonations 
to measure in situ noise levels for comparison against the modeled 
results and ensure noise levels assuming 10 dB attenuation are not 
exceeded;
     Requiring SFV during the operational phase of the Project;
     Implementing soft-starts during impact pile driving and 
ramp-up during the use of high-resolution geophysical (HRG) marine site 
characterization survey equipment;
     Requiring various vessel strike avoidance measures;
     Requiring various measures during fisheries monitoring 
surveys, such as immediately removing gear from the water if marine 
mammals are considered at-risk of interacting with gear;
     Requiring regular and situational reporting including, but 
not limited to, information regarding activities occurring, marine 
mammal observations and acoustic detections, and sound field 
verification monitoring results; and
     Requiring monitoring of the NARW sighting networks, 
Channel 16, and PAM data as well as reporting any sightings to NMFS.
    Through adaptive management (50 CFR 217.317(c)(1)) NMFS Office of 
Protected Resources may modify (e.g., remove, revise, or add to) the 
existing mitigation, monitoring, or reporting measures summarized above 
and required by the LOA. NMFS must withdraw or suspend an LOA issued 
under these regulations after notice and opportunity for public comment 
if it finds the methods of taking or the mitigation, monitoring, or 
reporting measures are not being substantially complied with (16 U.S.C. 
1371(a)(5)(B); 50 CFR 216.106(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 216.106(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)). The Project is listed on the Permitting Dashboard, where 
milestones and schedules related to the environmental review and 
permitting for the project can be found: https://www.permits.performance.gov/permitting-project/sunrise-wind-farm.

Summary of Request

    On November 10, 2021, Sunrise Wind submitted a request for the 
promulgation of regulations and issuance of an associated 5-year LOA to 
take marine mammals incidental to construction activities associated 
with the Project offshore of New York in the BOEM Lease Area OCS-A-
0487. Sunrise Wind's request is for the incidental, but not 
intentional, taking of a small number of 16 marine mammal species 
(comprising 16 stocks) by Level B harassment (for all 16 species or 
stocks) and by Level A harassment (for 7 of the 16 species or stocks). 
Sunrise Wind did not request authorization for, and NMFS does not 
expect, take by serious injury or mortality to occur for any marine 
mammal species or stock incidental to the specified activities.
    In response to our questions and comments and following extensive 
information exchange between Sunrise Wind and NMFS, Sunrise Wind 
submitted a final revised application on May 9, 2022, which NMFS deemed 
adequate and complete on May 10, 2022. This final application is 
available on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
    On June 2, 2022, NMFS published a notice of receipt (NOR) of 
Sunrise Wind's adequate and complete application in the Federal 
Register (87 FR 33470), requesting comments and soliciting information 
related to Sunrise Wind's request during a 30-day public comment 
period. During the NOR public comment period, NMFS received comment 
letters from two environmental non-governmental organizations: Clean 
Ocean Action and Oceana. NMFS reviewed all submitted material and took 
the material into consideration during the drafting of the proposed 
rule. Subsequently, in June 2022, new scientific information was 
released regarding marine mammal densities (Robert and Halpin, 2022) 
and, as such, Sunrise Wind submitted a final Updated Density and Take 
Estimation Memo to NMFS on December 15, 2022 that included updated 
marine mammal densities and take estimates. This memo is available on 
our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
    On February 10, 2023, NMFS published the proposed rule for the 
Project in the Federal Register (88 FR

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8996). In the proposed rule, NMFS synthesized all of the information 
provided by Sunrise Wind, all best available scientific information and 
literature relevant to the proposed project, outlined, in detail, 
proposed mitigation designed to effect the least practicable adverse 
impacts on marine mammal species and stocks as well as proposed 
monitoring and reporting measures, and made preliminary negligible 
impact and small numbers determinations. The public comment period on 
the proposed rule was open for 30 days from February 10, 2023 through 
March 13, 2023 on https://www.regulations.gov. A summary of public 
comments received during this 30-day period is described in the 
Comments and Responses section; full public comments may be viewed on 
https://regulations.gov.
    On March 23, 2023, after the proposed rule was published and the 
public comment period concluded, Sunrise Wind submitted revised take 
and exposure estimates resulting from a reduction in the number of wind 
turbine generator (WTG) foundations to be installed (94 to 87; Reduced 
WTG Foundation report) and then a correction shortly thereafter 
(Reduced WTG Foundation Corrected tables 50 and 51). Pile size (maximum 
7/12 m diameter tapered monopiles and 4-m pin piles for the jacket 
foundation) and hammer size (maximum 4,000 kJ hammer) did not change, 
nor did the underlying modeling and take estimate methodologies. A 
reduction in total WTG foundations results in an overall reduction in 
take within the Lease Area and, therefore, an overall reduction in take 
across the 5-year duration of Project activities. Also, in March 2023, 
Sunrise Wind submitted a revised Temporary Pier Pile Driving at the 
Sunrise Wind Landfall--Take Assessment and Mitigation Measures Memo. 
This memo removed the work associated with the plan to install mooring 
and breasting dolphins near the boat ramp at the Smith Point Marina on 
the Long Island side of the ICW. As described in the proposed rule, 
Sunrise Wind did not request and NMFS did not propose to authorize take 
of marine mammals incidental to temporary pier and breasting and 
mooring dolphin construction activities, and thus, the estimated take 
numbers have not changed due to the removal of these activities.
    In April 2023, Sunrise Wind submitted a supplementary report that 
demonstrates its ability to accurately determine the charge weight of 
UXO/MEC encountered in the field prior to detonation. Because of this 
report, the final rule provides Orsted with specific mitigation and 
monitoring zone sizes based on charge weight bin sizes and no longer 
requires that the E12 (largest) charge weight mitigation and monitoring 
zones apply to smaller charge weight sizes, provided that Sunrise Wind 
is able to confirm the smaller charge weight size before any 
detonation.
    NMFS previously issued four Incidental Harassment Authorizations 
(IHAs) to [Oslash]rsted for the taking of marine mammals incidental to 
marine site characterization surveys using HRG equipment of the Sunrise 
Wind's Lease Area (OCS-A 0487) and surrounding Lease Areas (OCS-A 0486, 
OCS-A 0500) (84 FR 52464, October 2, 2019; 85 FR 63508, October 8, 
2020; 87 FR 756, January 6, 2022; and 87 FR 61575, October 12, 2022). 
In addition, NMFS issued an IHA to South Fork Wind (a subsidiary of 
[Oslash]rsted) to install foundations and conduct HRG surveys for 
construction of the South Fork Wind Project (87 FR 806; January 6, 
2022). To date, [Oslash]rsted has complied with all IHA requirements 
(e.g., mitigation, monitoring, and reporting) and has not exceeded the 
number of take authorized. Information regarding [Oslash]rsted's 
monitoring results relevant to the Sunrise Wind Project may be found in 
the Estimated Take section and the final monitoring reports, where 
available, 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 
NARW vessel speed regulations to further reduce the likelihood of 
mortalities and serious injuries to endangered right whales from vessel 
collisions, which are a leading cause of the species' decline and a 
primary factor in an ongoing Unusual Mortality Event (UME) (87 FR 
46921, August 1, 2022). Should a final vessel speed rule be issued and 
become effective during the effective period of these regulations (or 
any other MMPA incidental take authorization), the authorization holder 
will be required to comply with any and all applicable requirements 
contained within the final rule. Specifically, where measures in any 
final vessel speed rule are more protective or restrictive than those 
in this or any other MMPA authorization, authorization holders will be 
required to comply with the requirements of the vessel speed rule. 
Alternatively, where measures in this or any other MMPA authorization 
are more restrictive or protective than those in any final vessel speed 
rule, the measures in the MMPA authorization will remain in place. The 
responsibility to comply with the applicable requirements of any vessel 
speed rule will become effective immediately upon the effective date of 
any final vessel speed rule, and when notice is published on the 
effective date, NMFS will also notify Sunrise Wind if the measures in 
the speed rule were to supersede any of the measures in the MMPA 
authorization such that they were no longer required.
    On February 22, 2024, Sunrise Wind provided an updated Project 
schedule that aligns with their December 2023 Construction and 
Operations Plan submitted to BOEM for approval. Based on this update, 
Sunrise Wind has requested the regulations and associated LOA be 
effective from June 21, 2024 through June 20, 2029.

Description of the Specified Activity

Overview

    Sunrise Wind has proposed to construct and operate a 924 to 1,034 
megawatt (MW) wind energy facility (known as Sunrise Wind Farm (SRWF)) 
in the Project Area. Sunrise Wind's project would consist of several 
different types of permanent offshore infrastructure, including 87 WTGs 
on monopile foundations with a maximum diameter tapering from 7 meters 
(m) above the waterline to 12 m below the waterline (7/12 m), a single 
offshore converter substation (OCS-DC) on a jacket foundation 
(comprised on 4-m pin piles), offshore substation array cables, and 
substation interconnector cables. Specifically, activities to construct 
the project include: (1) impact pile driving the WTG and OSC-DC 
foundations; (2) pneumatic hammering for installation and removal of 
temporary casing pipes and vibratory pile driving for installation and 
removal of temporary goal post and sheet piles at the cable landfall 
site; (3) impact and vibratory pile driving associated with the Smith 
Point County Park temporary pier; (4) trenching, laying, and burial 
activities associated with the installation of the export cable route 
from the OCS-DC to the shore-based converter station and inter-array 
cables between turbines; (5) site preparation work (e.g., boulder 
removal); placement of scour protection around foundations; (6) HRG 
vessel-based site characterization surveys using active acoustic 
sources with frequencies of less than 180 kHz; (7) detonating up to 
three UXO/MEC of different charge weights; and (8) several types of 
fishery and ecological monitoring surveys. Vessels would transit within 
the Project Area and between ports and the SRWF to

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transport crew, supplies, and materials to support pile installation. 
All offshore cables will connect to onshore export cables, substations, 
and grid connections, which would be located at Smith Point County Park 
in Shirley, New York. Marine mammals exposed to elevated noise levels 
during impact and vibratory pile driving, UXO/MEC detonation, pneumatic 
hammering, or HRG site characterization surveys may be taken by Level A 
harassment and/or Level B harassment, depending on the specified 
activity. Other activities listed above are not anticipated to result 
in take either due to the nature of the activities or due to the 
implementation of monitoring and mitigation measures.

Dates and Duration

    Since publication of the proposed rule, Sunrise Wind has provided 
an updated Project schedule (table 1) based on the latest version of 
their Construction and Operations Plan submitted to BOEM for approval. 
While this is the most recent schedule at time of promulgating this 
rulemaking, NMFS recognizes the potential for activity schedules to 
shift such that they may occur during different timeframes.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TR22MY24.000

BILLING CODE 3510-22-C

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Specific Geographic Region

    A detailed description of the Specific Geographic Region, 
identified as the Mid-Atlantic Bight, is provided in the proposed rule 
(88 FR 8996, February 10, 2023). Since the proposed rule was published, 
no changes have been made to the Specified Geographic Region. 
Generally, Sunrise Wind's specified activities (i.e., impact pile 
driving of monopile and jacket foundations; vibratory pile driving 
(installation and removal) of temporary goal posts and sheet piles; 
pneumatic hammering of temporary casing pipes; impact and vibratory 
pile driving associated with the Smith Point County Park temporary 
pier; placement of scour protection; trenching, laying, and burial 
activities associated with the installation of the SRWEC and inter-
array cables; HRG site characterization surveys; UXO/MEC detonation; 
and WTG operation) are concentrated in the Project Area. Vessel transit 
may originate from ports in New York, Connecticut, Maryland, 
Massachusetts, New Jersey, Rhode Island, and Virginia.
[GRAPHIC] [TIFF OMITTED] TR22MY24.044

Comments and Responses

    NMFS published a proposed rule in the Federal Register on February 
10, 2023 and opened a 30-day public comment period (88 FR 8996). The 
proposed rule described, in detail, Sunrise Wind's specified 
activities, the specific geographic region of the specified activities, 
the marine mammal species that may be affected by those activities, and 
the anticipated effects on marine mammals. In the proposed rule, NMFS 
requested that interested persons submit relevant information, 
suggestions, and comments on Sunrise Wind's request for the 
promulgation of regulations and issuance of an associated LOA described 
therein, our estimated take analyses, the preliminary determinations, 
and the proposed regulations.
    NMFS received 578 comment submissions, including from the Marine 
Mammal Commission (Commission), several non-governmental organizations, 
and private citizens, all of which are available for review on 
www.regulations.gov. Most of these comments were out-of-scope or not 
applicable to the Project (e.g., general opposition to or support of 
offshore wind projects; concerns for other species outside NMFS' 
jurisdiction such as birds) and are not described herein or discussed 
further. Moreover, NMFS does not include 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, as those comments did not raise 
significant points for NMFS to consider. Furthermore, if a comment 
received was unclear, NMFS does not include it here as it could not 
determine whether it raised a significant point for NMFS to consider. 
Non-governmental organizations that submitted comments included: (1) 
Responsible Offshore Development Alliance (RODA); (2) Oceana, Inc. 
(Oceana); (3) Natural Resources Defense Council (NRDC); (4) Clean Ocean 
Action (COA); (5) Seafreeze Limited; (6) Long Island Commercial Fishing 
Association; (7) Green Ocean; and (8) Allco Renewable Energy Limited. 
NMFS considered substantive comments in this final rule, including 
comments related to the estimated take analysis, final determinations, 
and final mitigation, monitoring, and reporting requirements. A summary 
of comments is described below, along with NMFS' responses.
    Comment 1: The Commission recommends that, until JASCO Applied

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Sciences' (hereafter, ``JASCO'') model has been validated with in situ 
measurements from the impact installation of monopiles and pin piles 
along the Atlantic coast, NMFS should re-estimate the various Level A 
harassment and Level B harassment zones for the final rule using source 
levels that are at a minimum 3 dB greater than those currently used.
    Response: The Commission has expressed concerns about the lack of 
validation of JASCO's models in previous Commission letters for 
[Oslash]rsted's other wind projects. JASCO has compared their source 
model predictions to an empirical model prediction by the Institute of 
Technical and Applied Physics (ITAP). The empirical model is based on a 
large data set of pile driving sounds measured at 750 m from the source 
collected during installation of large-diameter piles (up to 8 m) 
during wind farm installation in the North Sea (Bellmann, 2020). As no 
noise measurements exist for tapered 7/12-m monopile at this time as 
these have yet to be installed offshore, the ITAP prediction 
facilitates a way of validating the source levels of the numerical 
finite difference (FD) model. The ITAP data are averaged across 
different scenarios--pile sizes are grouped, which includes different 
hammers, water depths, depths of penetration, and environmental 
conditions--and the 95th percentile level is reported, whereas the aim 
of JASCO's modeling is to estimate the median value. While the ITAP 
forecast and the FD source predictions were comparable (K[uuml]sel et 
al., 2022)), there is variance in the underlying ITAP data and there 
are parametric choices for the FD model in the different environments, 
so an exact match is not expected. As part of the comparison, it was 
found that different, but reasonable, parametric input choices in the 
FD modeling can result in output differences on the order of the 
variance in the ITAP data so it was concluded that the FD modeling 
approach performed as well as can be discernible given the available 
data. While adding 3 dB to the JASCO predictions at 750 m may bring 
JASCO's source predictions into line with the finite-element (FE) 
predictions for the portmanteau combining computation, comparison, and 
pile (COMPILE) scenario, it is not clear that this would be more 
accurate. This approach assumes that the FE models are correct, but 
Lippert et al. (2016) also state ``a drawback of [the FE] approach is 
that it simulates the energy loss due to friction in an indirect and 
rather nonphysical way.'' The Commission also suggested that NMFS could 
have used damped cylindrical spreading model (DCSM; Lippert et al., 
2018) and the source levels provided by the time-domain finite 
difference pile-driving source model (TDFD PDSM); however, for reasons 
described herein, NMFS has determined JASCO's model results are 
reliable and achievable.
    Measurements taken during the Coastal Virginia Offshore Wind (CVOW) 
Pilot Project reported the maximum distance to the marine mammal Level 
B threshold (160 dB re 1 microPascal (1[mu]Pa)) from the 7.8-m pile 
installed with a double big bubble curtain to be 3,891 m (12,765.75 
feet (ft)) when using a hammer operating at a maximum of 550 kilojoules 
(kJ) (WaterProof, 2020). JASCO's model prediction for 7/12-m tapered 
piles using a 4,000-kJ hammer is 3,833 m (12,575 ft). The Commission 
states that, based on the CVOW reported sound levels, it is unrealistic 
that an impact hammer with seven times more energy intensity would 
result in a smaller harassment zone. NMFS disagrees. Small differences 
in the propagation environment could account for the ranges being more 
comparable than expected. The CVOW pilot project is located in Virginia 
whereas the Sunrise Wind project is located in southern New England.
    Also, since the proposed rule was published, NMFS has received 
sound field verification reports from the South Fork Wind project, 
which used JASCO's modeling. In all but one case, the measured 
distances to NMFS' Level B harassment threshold were lower than JASCO's 
model predicted. The distance to NMFS Level B harassment threshold for 
the South Fork Wind project was modeled as 4,684 m while insitu 
measurements identified distances, excluding the one aforementioned 
pile, ranging from 1.84 kilometers (km) to 3.25 km. JASCO's modeling 
predicts the distances to the Level B harassment threshold during 
installation of the Sunrise Wind 7/12 m tapered monopiles will be 
approximately 6 to 6.5 km in summer depending on hammer size, which is 
approximately double than the loudest pile installed during the South 
Fork Wind results. NMFS notes that South Fork Wind determined that the 
one pile generating noise levels above those predicted (the first pile) 
did so due to a malfunctioning noise attenuation system, which was 
quickly rectified and deployed appropriately on all future piles.
    Since the close of the public comment period, NMFS has also 
received SFV reports from Vineyard Wind. However, due to the hammer 
energy assumption in the model versus what was used in the field (i.e., 
more hammer energy was used than modeled) and other operational 
challenges, it is more challenging to compare the Vineyard Wind 
measured results directly to the modeled results. Further, NMFS 
acknowledges the uncertainty associated with predicting phenomena such 
as propagation loss and its potential variability within a region but 
overall, JASCO's models are supported by recent measured results.
    Importantly, in this final rule, should SFV results reveal noise 
levels are louder than those predicted assuming 10 dB attenuation, NMFS 
is requiring Sunrise Wind to implement additional measures to reduce 
sound levels such that they do not exceed those modeled assuming 10 dB. 
Sunrise Wind is required to conduct either complete or abbreviated SFV 
monitoring on all foundation piles installed. Based on all these 
reasons, NMFS is not requiring Sunrise Wind to remodel the harassment 
zone sizes by adding 3 dB to the source levels and is, instead, 
carrying forward the modeling results as presented in the proposed 
rule.
    Based on this discussion, and given NMFS' consideration of the best 
available scientific information including available interim sound 
field verification (SFV) reports from other offshore wind construction 
projects in the United States, NMFS disagrees with the suggestions made 
by the Commission. NMFS has incorporated the best available scientific 
information into this final rule, using recent measurements as well as 
estimates obtained through JASCO's modeling.
    Comment 2: The Commission and other members of the public 
recommended NMFS (1) re-estimate and authorize Level A harassment takes 
based on modeling results for the worst-case scenario rather than 
presuming an arbitrary 80- or 100-percent reduction for mitigation 
efficacy and/or a 10-dB sound attenuation for impact pile driving, (2) 
re-estimate and authorize Level B harassment takes based on more 
conservative assumptions for the pile-driving scenarios that could 
occur (including only one monopile or fewer than four pin piles 
installed per day), (3) re-estimate the various mortality, Level A 
harassment, and Level B harassment zones and numbers of takes based on 
0-dB of sound attenuation for UXO detonations and authorize Level A and 
B harassment takes, including behavior takes, that could result from 
UXO detonations, and (4) increase any Level A or B harassment takes to 
mean group size (including updates that reflect the results of more 
recent marine mammal surveys in the Rhode Island-

[[Page 45298]]

Massachusetts WEA). Another commenter suggested that the numbers of 
takes, particularly with respect to NARW, rely on mitigation methods 
that remain unproven.
    Response: NMFS disagrees with the Commission that our analysis 
should carry forward take estimates based on the worst-case scenario 
that assumes no reduction of impacts results from the mitigation and 
notes that the Commission did not present any data supporting their 
recommendation. As described in the proposed rule, this final rule 
reasonably assumes that the mitigation efforts will be effective at 
reducing the potential for Level A harassment calculated in the 
density-based models. The models do not account for mitigation (except 
with respect to assuming attenuation and seasonal restrictions) and, 
therefore, it is reasonable to assume the model overestimates Level A 
harassment. Further, while the scientific literature documents marine 
mammals are likely to avoid loud noises such as pile driving (e.g., 
Brandt et al., 2016, Nowack et al., 2004), avoidance was not 
quantitatively considered in the take estimates. However, NMFS 
reasonably predicts this natural behavior will further reduce the 
potential for Level A harassment.
    In the proposed rule, NMFS described the best available science, 
which supports the assumption that at least 10dB attenuation can be 
reliably achieved using noise attenuation systems such as a double 
bubble curtain. The Commission did not provide reason for why they 
believe this was an overestimate nor did they suggest an alternative 
amount of attenuation NMFS should consider other than zero attenuation. 
Other commenters expressed similar support stating that bubble curtains 
are not effective for low-frequency cetaceans. NMFS agrees that 
attenuation levels vary by frequency band and that bubble curtains 
attenuate higher frequency sounds more effectively; however, NMFS 
disagrees that lower frequency bands, which are important to consider 
when evaluating impacts, are not attenuated at all. The data from 
Bellmann (2021), shows that for both single and double bubble curtains, 
more than 10 dB of attenuation was achieved for bands as low as 32 Hz. 
And while it is true that performance diminishes significantly at lower 
frequencies (< 32 Hz), those bands also contain significantly less pile 
driving sound and is 16+ dB outside the most susceptible frequency 
range for low-frequency cetaceans.
    NMFS recognizes that the key to effective mitigation is the ability 
to detect marine mammals to trigger such mitigation. Sunrise Wind is 
required to undertake extensive monitoring to maximize marine mammal 
detection effectiveness. The reduction to the density-based take 
estimate appropriately reflects and acknowledges the monitoring 
efforts, including the placement of 3 PSOs on the pile driving platform 
and dedicated PSOs vessel(s) and PAM.
    NMFS agrees with the Commission that there is potential for 
behavioral disturbance from a single detonation per day and disagrees 
that ``behavior takes'' were omitted and have not been accounted for. 
However, the behavioral threshold for underwater detonations identified 
by the Commission (5 dB less than the temporary threshold shift (TTS) 
threshold) is only applicable to multiple detonations per day. NMFS is 
not aware of evidence to support the assertion that animals will have 
behavioral responses that would qualify as take to temporally and 
spatially isolated explosions at received levels below the TTS 
threshold. Accordingly, the current take estimate framework allows for 
the consideration of behavioral disturbance resulting from single 
explosions specifically if they are exposed above the TTS threshold, as 
opposed to the 5 dB lower threshold for behavioral disturbance from 
multiple detonations. We acknowledge in our analysis that individuals 
exposed above the TTS threshold may also be harassed by direct 
behavioral disruption and those potential impacts are considered in the 
negligible impact determination. NMFS agrees with the Commission that 
the proposed rule did not include some information in Sunrise Wind's 
application regarding certain foundation construction scenarios. We 
have added that information to this final rule. The distances to 
harassment thresholds have not changed from the application and 
proposed rule and are presented in this final rule. Take estimates did 
not change as a result of including this additional information.
    Comment 3: A commenter claimed that the authorized taking by 
harassment is not incidental but intentional and that take associated 
with soft-starts was not considered in the take analysis.
    Response: NMFS' implementing regulations define incidental 
harassment, incidental taking, and incidental, but not intentional, 
taking as an accidental taking. This does not mean that the taking is 
unexpected, but rather it includes those takings that are infrequent, 
unavoidable or accidental'' (50 CFR 216.103). NMFS disagrees that the 
take that may be authorized under this rulemaking is intentional. The 
commenter is also incorrect that the amount of harassment that would be 
authorized in a LOA under this final rule does not account for soft-
starts. As described in the Estimated Take section, Sunrise Wind 
requested the maximum number of takes generated from three methods: 
density-based exposure estimates, group size data, and PSO data, all of 
which account for soft starts. Based on the nature of the methods, this 
is most evident in the density-based exposure estimates. The hammer 
schedules in the application, proposed rule, and this final rule all 
account for pile driving that would occur during installation, 
including lower hammer energies. Soft starts are simply impact pile 
driving at these lower hammer energies. Therefore, the exposure 
estimates account for pile driving during soft starts. The other two 
take estimate methods (i.e., group size and PSO data) are based on the 
number of days of pile driving, which also inherently considers all 
pile driving associated with foundation installation for those days.
    Comment 4: A commenter requested NMFS provide an explanation for 
the differences in assumptions and corresponding differences in take 
estimates for the Revolution Wind, LLC (Revolution Wind) and Sunrise 
Wind projects provided [Oslash]rsted is the developer for both 
projects.
    Response: The MMPA indicates that, upon request, NMFS shall issue 
the requested incidental take authorization if certain findings are 
made. Applicants propose take estimate modeling methodologies, and NMFS 
evaluates if the approaches are reasonable and supported. Sunrise Wind, 
a 50/50 joint venture between [Oslash]rsted and Eversource Investment, 
LLC and Revolution Wind, a subsidiary wholly owned by [Oslash]rsted, 
both submitted applications containing the same acoustic modeling and 
take estimate approaches for foundation installation, cable landfall 
construction, HRG surveys, and UXO/MEC detonation activities. Both 
companies applied JASCO's modeling tools to estimate distances to NMFS 
harassment isopleths. They also both estimated take from foundation 
installation assuming that all impact pile driving occurred in the 
highest and second highest density months in their applications (note 
that Revolution Wind subsequently assumed all piles would be installed 
in the highest density month after reducing the number of foundations 
to be installed). For some species, observational data from PSOs aboard 
HRG survey vessels or group size data indicated that the density-based 
take estimates may be

[[Page 45299]]

insufficient to account for the number of individuals of a species that 
may be encountered during the planned activities and, therefore, take 
from the density-based exposures were adjusted to account for these 
data. While the methodologies are similar, there are differences in the 
results of undertaking those methods. The primary differences for take 
numbers between the two projects are generated from the scope of work 
(e.g., number of piles, amount of HRG survey work planned, number of 
UXO/MEC detonations), density estimates, and distances to NMFS 
harassment isopleths, which are influenced by both source levels and 
transmission loss rates which are site specific. These three factors 
strongly influence the take numbers requested and proposed by NMFS to 
authorize.
    Both applicants assumed mitigation measures (e.g., delay or 
shutdown) would result in fewer Level A harassment takes than estimated 
from the modeling (no Level A harassment was modeled (or expected) from 
HRG surveys or vibratory pile driving for both projects). Collectively, 
there are a multitude of reasons why take numbers, both modeled and 
ultimately requested, may differ. NMFS evaluates each application 
independently. The commenter did not provide evidence that any of the 
methodologies or assumptions were flawed. Specific to Sunrise Wind, 
NMFS has found that the take authorized under this rule would have a 
negligible impact on affected marine mammal species and stocks and has 
prescribed mitigation measures that affect the least practicable 
adverse impact on marine mammals.
    Comment 5: A commenter claimed that NMFS' thresholds are outdated, 
primarily because scientific literature demonstrates examples where 
behavioral disturbances have been documented where received levels are 
lower than 160 dB. Moreover, the commenter suggested that estimating 
the extent of Level B take from impact driving using the 160dB 
(impulsive) threshold is flawed because an animal may be exposed to 
several hours of pile driving per day, which should be considered 
continuous, and that, although impulsive at the source, the sound from 
impact driving may be received as a continuous source at a distance. 
For these reasons, the commenter suggested the proposed rule 
underestimates the Level B take and ``zones of impact''; thus, NMFS' 
small numbers and negligible impact determination is flawed.
    Response: For the reasons described below, NMFS disagrees that the 
160-dB threshold for behavioral harassment is not supported by the best 
available science and that the small numbers and negligible impact 
determinations are flawed based on the use of this threshold in the 
take estimate analysis. The potential for behavioral response to an 
anthropogenic source can be highly variable and context-specific 
(Ellison et al., 2012). While NMFS acknowledges the potential for Level 
B harassment at exposures to received levels below 160 dB rms, it 
should also be acknowledged that not every animal exposed to received 
levels above 160 dB rms will respond in ways constituting behavioral 
harassment. There are a variety of studies indicating that contextual 
variables play a very important role in response to anthropogenic 
noise, and the severity of effects are not necessarily linear when 
compared to a received level (RL). Several studies (e.g., Nowacek et 
al., 2004 and Kastelein et al., 2012 and 2015) showed there were 
behavioral responses to sources below the 160 dB threshold but also 
acknowledged the importance of context in these responses. For example, 
Nowacek et al. (2004) reported the behavior of five out of six NARW was 
disrupted at RLs of only 133-148 dB re 1 [mu]Pa (returning to normal 
behavior within minutes) when exposed to an alert signal. However, the 
authors also reported that none of the whales responded to noise from 
transiting vessels or playbacks of ship noise even though the RLs were 
at least as loud and contained similar frequencies to those of the 
alert signal. The authors state that a possible explanation for whales 
responding to the alert signal and not responding to vessel noise is 
due to the whales having been habituated to vessel noise while the 
alert signal was a novel sound. In addition, the authors noted 
differences between the characteristics of the vessel noise and alert 
signal, which may also have played a part in the differences in 
responses to the two noise types. Therefore, it was concluded that the 
signal itself, as opposed to the RL, was responsible for the response. 
DeRuiter et al. (2012) also indicate that variability of responses to 
acoustic stimuli depends not only on the species receiving the sound 
and the sound source, but also on the social, behavioral, or 
environmental contexts of exposure. Finally, behavioral responses 
depend on many contextual factors, including range to source, RL above 
background noise, novelty of the signal, and differences in behavioral 
state (Ellison et al., 2012, Gong et al., 2014). Similarly, Kastelein 
et al. (2015) examined behavioral responses of a harbor porpoise to 
sonar signals in a quiet pool but stated behavioral responses of harbor 
porpoises at sea would vary with context such as social situation, 
sound propagation, and background noise levels.
    NMFS uses 160 dB (rms) as the received sound pressure level for 
estimating the onset of Level B behavioral harassment for impulsive/
intermittent sound sources, and this is currently considered the best 
available science while acknowledging that the 160 dBrms 
step-function approach is a simplistic approach. While it be may true 
because of reverberation that impulsive pile driving strikes may 
``stretch'' as their sound travels through the environment, we do not 
classify these sounds as continuous, like drilling and vibratory pile 
driving. NMFS' behavioral harassment thresholds consider instantaneous 
exposure to noise and are based on a received level. These thresholds 
do not account for duration of exposure, as our PTS onset thresholds 
do. Thus, whether an individual was exposed to a few pile driving 
strikes or exposed for several hours of pile driving, the 160-dB 
threshold would still apply. While it is correct that in practice it 
works as a step-function (i.e., animals exposed to received levels 
above the threshold are considered to be ``taken'' and those exposed to 
levels below the threshold are not), it is in fact intended as a sort 
of mid-point of likely behavioral responses, which are extremely 
complex depending on many factors including species, noise source, 
individual experience, and behavioral context. What this means is that, 
conceptually, the function recognizes that some animals exposed to 
levels below the threshold will in fact react in ways that 
appropriately considered take while others that are exposed to levels 
above the threshold will not. Use of the 160-dB threshold allows for a 
simplistic quantitative estimate of take while we can qualitatively 
address the variation in responses across different received levels in 
our discussion and analysis.
    Overall, we reiterate the lack of scientific consensus regarding 
what criteria might be more appropriate. Defining sound levels that 
disrupt behavioral patterns is difficult because responses depend on 
the context in which the animal receives the sound, including an 
animal's behavioral mode when it hears sounds (e.g., feeding, resting, 
or migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore,

[[Page 45300]]

levels at which responses occur are not necessarily consistent and can 
be difficult to predict (Southall et al., 2007; Ellison et al., 2012; 
Southall et al., 2021). For example, Gomez et al. (2016) reported that 
RL was not an appropriate indicator of behavioral response. Further, 
the seminal reviews presented by Southall et al. (2007), Gomez et al. 
(2016), and Southall et al. (2021) did not suggest any specific new 
criteria due to lack of convergence in the data.
    Given that there is currently no concurrence on these complex 
issues, NMFS followed its practice at the time of submission and review 
of this application in assessing the likelihood of disruption of 
behavioral patterns by using the 160 dB threshold. NMFS is currently 
evaluating available information towards development of updated 
guidance for assessing the effects of anthropogenic sound on marine 
mammal behavior. However, undertaking a process to derive defensible 
exposure-response relationships, as suggested by Tyack and Thomas 
(2019), is complex. The recent systematic review by Gomez et al. (2016) 
was unable to derive criteria expressing these types of exposure-
response relationships based on currently available data.
    NMFS acknowledges that there may be methods of assessing likely 
behavioral responses to acoustic stimuli that better capture the 
variation and context-dependency of those responses than the simple 160 
dB step-function used here. However, there is no agreement on what that 
method should be or how more complicated methods may be implemented by 
applicants. NMFS is committed to continuing its work in developing 
updated guidance with regard to acoustic thresholds but pending 
additional consideration and process, is reliant upon an established 
threshold that is reasonably reflective of best available science.
    Comment 6: A commenter recommended that NMFS should consider the 
best available data regarding NARW abundance in the project area, as 
well as the most comprehensive models for estimating marine mammal take 
and developing robust mitigation measures.
    Response: The MMPA and its implementing regulations require that 
incidental take regulations be established based on the best available 
information, which does not always mean the most recent information. 
NMFS generally considers the information in the most recent U.S. 
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments Report 
(SAR) (Hayes et al., 2023) to be the best available information for a 
particular marine mammal stock because of the MMPA's rigorous SAR 
procedural requirements, which includes peer review by a statutorily 
established Scientific Review Group. Since publication of the proposed 
rule, NMFS has released the draft 2023 Stock Assessment Report 
indicating the NARW population abundance is estimated as 340 
individuals based on sighting data through December 31, 2021 (89 FR 
5495, January 29, 2024). NMFS has used the best available scientific 
information in the analysis of this final rule. This new estimate, 
which is based on the analysis from Pace et al. (2017) and subsequent 
refinements found in Pace (2021), provides the best available, and in 
this case most recent, estimate, including improvements to NMFS' right 
whale abundance model. NMFS notes this estimate aligns with the 2022 
NARW Report Card (Pettis et al., 2022) estimate (340) based on sighting 
data through August 2022 but, as described above, that the SARs are 
peer reviewed by other scientific review groups prior to being 
finalized and published and that the Report Card does not undertake 
this process. Based on this, NMFS has considered all relevant 
information regarding NARW. The commenters did not cite specific 
abundance data sources they recommended NMFS used or reasons why the 
science used in NMFS' assessment is not best available. NMFS has relied 
on the draft 2023 SAR in this final rule as it reflects the best 
available scientific information.
    NMFS notes that this change in abundance estimate does not change 
the estimated take of NARW or authorized take numbers, nor affect its 
ability to make the required findings under the MMPA for Sunrise Wind's 
construction activities.
    While NMFS cannot require applicants to utilize specific models for 
the purposes of estimating take incidental to offshore wind 
construction activities, it evaluates the models used to support take 
estimates to ensure that they are methodologically sound and 
incorporate the best available science. NMFS does require use of the 
Roberts et al. (2016, 2023) density data and SARs abundance estimates 
for all species, both of which represent the best available science 
regarding marine mammal occurrence.
    Comment 7: A commenter recommended a prohibition on pile driving, 
site assessment, and site characterization activities during times of 
highest risk to NARW by extending the seasonal restriction on impact 
pile driving to December 1 through April 30, reflecting highest 
activity levels of NARW. The commenter further identified that if a 
near real-time monitoring system and mitigation protocol for NARW and 
other large whale species is developed and scientifically validated, 
the system and protocol may be used 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: NMFS has restricted foundation installation pile driving 
from January through April, which represent the times of year when NARW 
are most likely to be in the Project Area. However, NMFS recognizes 
that the density of whales begins to elevate in December, as suggested 
by the commenter. Sunrise Wind has agreed to restrict pile driving in 
December to the maximum extent practicable. In this final rule, Sunrise 
Wind must not plan and, to the maximum extent practicable, not pile 
drive in December, and must seek NMFS approval for December pile 
driving. As described in the proposed rule, in any time of year when 
foundation installation is occurring, a visual sighting of NARW by 
foundation installation PSOs or an acoustic detection within a 10-km 
PAM monitoring zone triggers a delay in pile driving commencement or 
shutdown. In December, Sunrise Wind is also required to implement 
larger mitigation zones that reflect the acoustic modeling results 
using a winter sound speed profile (Table 32). With the application of 
these enhanced mitigation and monitoring measures in December, impacts 
to NARW will be further reduced.
    NMFS neither anticipates nor authorizes take of NARW by Level A 
harassment (PTS) from HRG survey activities. While NMFS is authorizing 
a total of 17 Level B harassment takes of NARW incidental to HRG 
surveys over the 5-year effective period of this rulemaking, the 
required mitigation will affect the least practicable adverse impact on 
the species from this activity. Specifically, the largest modeled Level 
B harassment zone size for the sparker (141 m) is already much smaller 
than the required separation, clearance, and shutdown distances for 
NARW (500 m) and any unidentified large whale must be treated as if it 
were a NARW, triggering associated mitigation. Any Level B harassment 
that is not avoided is not expected to impact important feeding or 
other behaviors that may occur throughout the year in the Project Area 
in a manner that poses energetic or reproductive risks for any 
individuals.

[[Page 45301]]

    The commenter stated that site assessment surveys could injure 
NARW; however, they did not provide scientific evidence to support this 
claim. As described in this rule, NMFS does not anticipate nor would 
authorize injury (i.e., Level A harassment) of NARW incidental to these 
surveys. Given the anticipated minimal impacts of the HRG surveys, NMFS 
disagrees that additional mitigation measures, including seasonal 
restrictions or dynamic management of HRG surveys timing, are 
warranted.
    Comment 8: The Commission recommends that NMFS expand zone sizes 
for foundation installation and base the various mitigation and 
monitoring zones, including the minimum visibility zone, on the largest 
of the Level A harassment zones in Tables 15 and 16 of the Federal 
Register notice.
    Response: NMFS has considered each construction scenario in this 
final rule as recommended by the Commission. This final rule increased 
the clearance and shutdown mitigation zone sizes for scenarios 
involving monopiles for marine mammals except for NARW (Table 32). The 
NARW clearance and shutdown zones remain ``any distance'' as described 
in Table 42 of the proposed rule. The final rule more clearly 
distinguishes between the sequential and concurrent installation 
scenarios. For example, the proposed rule included large whale (other 
than NARW) clearance and shutdown zones for all monopiles installed 
equating to 3,700 m in summer and 4,300 m in winter. In this final 
rule, the clearance and shutdown zones for sequential monopiling in 
summer is 4 km in summer and 4,300 m in winter while the monopile 
concurrent and OCS-DC/monopile concurrent clearance and shutdown zone 
in summer is 5.3 km in summer and 6.3 km in winter.
    NMFS did not increase the minimum visibility zone to the largest 
Level A harassment distance modeled, as recommended by the Commission, 
as this may result in unnecessary delays to the project. As described 
above, models demonstrate that completing a project during a time of 
year when a species of concern is less likely to be present is an 
effective means by which to reduce the magnitude of impacts (Southall 
et al., 2021). In this case, if the largest Level A harassment zones 
for all marine mammals (or zones within the low frequency cetacean 
hearing group) is used to establish the minimum visibility zone, this 
extended zone could unnecessarily delay the project, leading to a 
prolonged duration or more days over which construction would occur, 
which could result in greater impacts on marine mammals. The minimum 
visibility zone in this final rule equates to the largest ER95% for 
NARW. The ``OCS-DC only'' scenario zones remained the same as the 
proposed rule as these are considered adequately protective.
    Comment 9: The Commission recommends that NMFS require Sunrise Wind 
to deploy a dual sound attenuation system for UXO detonations and 
prohibit Sunrise Wind from conducting UXO detonations when currents are 
greater than 2 knots (kn).
    Response: In this final rule, NMFS is requiring Sunrise Wind to 
deploy a dual sound attenuation system (such as a double bubble 
curtain) to meet the noise levels modeled assuming 10-dB attenuation. 
As described in the proposed rule and carried forward in this final 
rule, NMFS is requiring Sunrise Wind to conduct complete SFV on all 
detonations. Further, we are requiring that the bubble curtain be 
placed at a distance such that the nozzle hose remains undamaged.
    In its letter, the Commission did not provide reasoning or 
justification for its recommendation for restricting UXO/MEC detonation 
if current speeds are greater than 2 kn. However, the Commission 
references its Ocean Wind 1 proposed rule comment letter, which states 
that Bellmann (2021) indicated that currents greater than 2 kn led to a 
reduction of sound attenuation that cannot be resolved with additional 
compressed air or larger distances to the source and that the overall 
achieved sound reduction of a big bubble curtain depends significantly 
on the configuration and application of the BBC. The Commission 
identified that if the configuration and application of the bubble 
curtain is not optimized, then sound reduction decreases significantly. 
In this case, [Oslash]rsted will have experience deploying bubble 
curtains in U.S. waters for two offshore wind projects, and NMFS 
anticipates that the double bubble curtain will be optimized. The 
Commission did not present evidence that the distances to thresholds 
assuming 10 dB attenuation could not be achieved in current speeds over 
2 knots; therefore, at this time, NMFS is not requiring UXO/MEC 
detonation be limited to times when current speed is 2 kn (2.3 mph) or 
less. Sunrise Wind is required to use a dual attenuation device (e.g., 
double bubble curtain) during the 3 UXO/MEC detonations that may occur 
and conduct SFV on all detonations. Should SFV determine that the model 
underestimated impacts, the mitigation zone sizes would be increased, 
and additional attenuation measures added to ensure impacts are not 
greater than those analyzed for the next detonation.
    Comment 10: Several commenters requested NMFS add to or modify the 
vessel strike avoidance mitigation measures contained within the 
proposed rule. Specific recommendations included limiting all vessels 
to speeds of 10 kn or less at all times with no exceptions, developing 
an ``Adaptive Plan'' as an alternative to the 10 kn speed restriction, 
requiring Class A AIS, requiring PSOs on all vessels when underway as 
opposed to a ``visual observer'' and requiring service vessels to 
complement observer coverage with additional monitoring technologies 
(e.g., infrared (IR) detection devices for whales and other protected 
species, requiring Sunrise Wind to provide a vessel traffic plan, 
keeping 500 m away from NARW at all times and 100 m for other large 
whale species, requiring that all vessel personnel are trained in 
observing and identifying NARW, and requiring each vessel to have a 
minimum of 4 PSOs following a two-on, two-off rotation, each 
responsible for scanning no more than 180[deg]of the horizon per pile 
driving locations). A commenter also claimed that vessel speed 
restrictions are not fully mandated or enforced for OSW vessels.
    Response: NMFS acknowledges that vessel strikes pose a risk to all 
large whales, including NARW and the proposed rule and this final rule 
requires a suite of mitigation measures to effect the least practicable 
adverse impact from vessels on marine mammals. These measures are more 
restrictive than other industrial, commercial, military, and 
recreational vessels. All vessel operators must abide by vessel speed 
regulations (50 CFR 224.105). All transiting vessels, regardless of 
speed or size, are required to have a trained dedicated visual observer 
watching for marine mammals. In the event a marine mammal is observed, 
the vessel must slow to 10 kn or less or if within separation zones 
(500 m for NARW and 100 m for sperm whales and non-NARW), turn away 
from and slow engines to neutral. In any Seasonal Management Area 
(SMA), Dynamic Management Area (DMA), or Slow Zone (the latter two of 
which are voluntary for other vessels), Sunrise Wind must operate 
vessels at 10 kn or less. Further, between November 1st and April 30th, 
all vessels, regardless of size, must operate port to port 
(specifically from ports in New Jersey, New York, Maryland, Delaware, 
and Virginia) at 10 kn or less, except for while transiting in 
Narragansett Bay or Long Island Sound. Sunrise Wind is also required to 
maintain situational

[[Page 45302]]

awareness of marine mammals by monitoring various systems and internal 
communication. NMFS has determined it is impracticable for all vessels 
to travel 10 kn or less at all times and is not necessary to achieve 
the least practicable adverse impact given the mitigation discussed 
above.
    As described above, in many cases, there are no alternatives to the 
10 kt or less speed restrictions. However, NMFS has determined that 
under certain conditions, Sunrise Wind vessels could travel at over 10 
kts. A commenter has recommended that this ``Adaptive Plan'' be allowed 
only if it is proven to be equally or more effective than a 10 kt speed 
restriction. NMFS has determined that the monitoring required, 
including both direct marine mammal monitoring and situational 
awareness monitoring and reporting, affect the least practicable 
adverse impact on marine mammals. The commenter did not provide 
scientific evidence that the circumstances in which Sunrise Wind 
vessels could travel over 10 kts are not effective at avoiding vessel 
strikes.
    In this final rule, NMFS is requiring that all vessels associated 
with Sunrise Wind's activities be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and Sunrise 
Wind must report all Maritime Mobile Service Identify (MMSI) numbers to 
NMFS Office of Protected Resources, thus facilitating monitoring of 
vessel speeds. In addition, NMFS maintains an Enforcement Hotline for 
members of the public to report violations of vessel speed 
restrictions. NMFS does not require PSOs to be onboard every transiting 
vessel as it is impracticable due to potential limited space on the 
vessels. However, as described in the proposed rule and carried forward 
in this final rule, Sunrise Wind must have dedicated visual observers 
onboard all vessels with no other concurrent duties. The dedicated 
visual observer may be a PSO or a trained crew member.
    NMFS described in the proposed rule, and is requiring in this final 
rule, that infrared technologies and PAM hydrophone deployments be 
available and used before, during, and after pile driving. To ensure 
marine mammal detection is maximized, and in response to public 
comments, NMFS is now requiring monitoring for marine mammals before, 
during, and after foundation installation, and is requiring in this 
final rule three on-duty PSOs on both platforms such that each PSO is 
responsible for 120-degree coverage. As proposed, this final rule 
requires that visual observers must be equipped with alternative 
monitoring technology (e.g., night vision devices, infrared cameras) to 
monitor clearance and shutdown zones during periods of low visibility 
(e.g., darkness, rain, fog, etc.).
    NMFS disagrees with the commenter that the final rule and LOA must 
include a ``vessel traffic'' plan. The commenter did not provide 
details on what this plan should include. Sunrise Wind provided 
information pertaining to the types and number of vessels necessary to 
construct the project. It is also required to submit a Vessel Strike 
Avoidance Plan, which must include, but is not limited to, more detail 
on ports used and means by which they would abide by the extensive 
measures outlined here. While NMFS acknowledges that vessel strikes can 
result in injury or mortality, the implementation of the required 
monitoring and mitigation measures would reduce the risk of vessel 
strike to levels low enough such that it is considered discountable; 
thus, no vessel strike is expected or would be authorized under this 
final rule. These measures also ensure the least practicable adverse 
impact on species or stocks and their habitat.
    Comment 11: A commenter recommended strengthening mitigation 
measures for other endangered species and species experiencing UMEs to 
minimize take by Level A harassment, indicating the mitigation measures 
required by the proposed rule to reduce risk to large whales are 
largely designed for NARW and may not be equally efficacious for other 
species (e.g., passive acoustics will not be used to trigger mitigation 
measures for fin whales).
    Response: NMFS disagrees that additional or modified mitigation 
measures are necessary to affect the least practicable adverse impact 
on marine mammal species or stocks, including those listed under the 
ESA and experiencing UMEs. This rule allows a limited number of Level A 
harassment takes to be authorized for two ESA-listed species (i.e., fin 
whale and sei whale, neither of which are experiencing a UME), two non-
ESA listed species experiencing active UMEs (i.e., humpback whales and 
minke whales) and two non-ESA listed species with non-active UMEs with 
closure pending (i.e., gray and harbor seals) incidental to foundation 
impact pile driving (table 15). A very limited number of seals (n=5) 
may also experience PTS from UXO/MEC detonation (table 23). NMFS notes 
that these take estimates did not consider mitigation measures other 
than seasonal restrictions and 10 dB of sound attenuation. Some 
mitigation measures in the proposed rule and this final rule are 
centered around NARW because of the species status and general fitness 
of individuals. NMFS acknowledges that seasonal closures are based on 
NARW densities and the maximum density months for other ESA-listed 
species and stocks experiencing UMEs may occur outside of the seasonal 
closures (table 12). However, it is neither possible nor practicable to 
schedule activities around every species' densities because of the 
significant amount of variation and year-round presence of some 
species. Other enhanced mitigation for NARW includes delaying or 
shutting down pile driving should a NARW be observed at any distance by 
a foundation installation PSO or acoustically detected within the PAM 
monitoring zone. If clearance and shutdown zones were increased for 
other ESA-listed species and marine mammal species experiencing UMEs, 
it would result in longer construction time frames, prolonging the time 
periods over which marine mammals may be exposed to construction-
related stressors, as well as creating impracticable operational 
scenarios for the applicant. It has been modeled and is logical that 
projects should be constructed as quickly as possible during times when 
the potential for a species of concern to be present is lowest 
(Southall et al. 2021). Accordingly, NMFS has determined that the 
current clearance and shutdown zones, together with other mitigation 
measures, affect the least practicable adverse impact on marine 
mammals. Moreover, while some mitigation measures are focused on NARW, 
NMFS has determined that the take that may be authorized, which 
includes both Level A and Level B harassment, has a negligible impact 
on all marine mammal species and stocks and affects the least 
practicable adverse impact on marine mammal species or stocks.
    Regarding PAM detections, NMFS has clarified in this final rule 
that while the PAM system should be designed to maximize detections of 
NARW and is not required to have the capability to detect all marine 
mammals within the 10km PAM monitoring zone, should another marine 
mammal be detected (e.g., a fin whale, which vocalizes within similar 
frequencies for which the PAM system would be optimized) within a 
clearance or shutdown zone via PAM, mitigation must be applied.
    Comment 12: Several commenters recommended that the impacts of 
underwater noise be minimized to the fullest extent feasible (e.g., 
select and operate subbottom profiling systems at the lowest source 
levels practicable) and that the best commercially available

[[Page 45303]]

technology and methods should be used to minimize sound levels from 
piledrivingcoupled with a robust monitoring and reporting program to 
ensure compliance. A commenter recommended projects should achieve no 
less than 10 dB (SEL) in combined noise reduction and attenuation, 
taking as a baseline, projections from prior noise measurements of 
unmitigated piles from Europe and North America. Another commenter 
recommended a requirement of the implementation of best commercially 
available combined (near- and far-field) noise abatement systems 
capable of a 15 dB reduction (SEL). A commenter also suggested that 
developers must be required to specify the exact equipment to be used 
for noise attenuation for proper evaluation of potential impacts.
    Response: NMFS, as delegated by the Secretary of Commerce, must 
promulgate regulations setting forth mitigation measures affecting the 
least practicable adverse impact on marine mammal species or stocks and 
their habitat in any issued incidental take authorization (16 U.S.C. 
1371(a)(5)(A)(i)(II)). As described in both the proposed rule and this 
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 attenuation. NMFS clarifies that, because 
no unattenuated piles may be driven, there is no way to confirm a 10-dB 
reduction; rather, in situ SFV measurements will be conducted to ensure 
that sound levels are at or below those modeled assuming a 10-dB 
reduction. At this time, NMFS is not requiring 15 dB attenuation be 
achieved. While data do demonstrate that this is feasible under some 
circumstances (e.g., Bellman et al., 2020), the data on the 
effectiveness of NAS in the Atlantic for similar size piles is scant. 
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. Therefore, while higher than 10 dB attenuation may be 
technically feasible under some circumstances, more data are needed 
before assuming a higher level of attenuation is consistently 
achievable in all environments.
    In addition to the SFV requirements in the proposed rule, 
consistent with the Biological Opinion, NMFS has added to this final 
rule the requirement that Sunrise Wind 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. NMFS is requiring that these SFV results must be 
included in the weekly reports. Any indications that distances to the 
Level A harassment and Level B harassment thresholds for whales are 
exceeded must be addressed by Sunrise Wind, including an explanation of 
factors that contributed to the exceedance and corrective actions that 
were taken to avoid exceedance on subsequent piles.
    Since the proposed rule, Sunrise Wind has identified the noise 
attenuation systems that will be used during foundation installation 
(i.e., a double bubble curtain and AdBm resonator). While knowing the 
exact system is not required to evaluate the potential impacts to 
marine mammals as NMFS conservatively carries forward the proposed 
system with the largest potential impact into the estimate take 
analysis, NMFS believes the commenter's request to specific the noise 
attenuation system has been satisfied.
    Comment 13: A commenter recommended NMFS should expand the NARW PAM 
and visual clearance zones to 5,000 m from the pile during impact and 
vibratory pile driving; expand the PAM shutdown zone (exclusion zone) 
to 2,000 m during vibratory and impact pile driving; expand the 
clearance zone during HRG to 1,000 m; and have a soft-start/ramp-up 
whenever a shutdown during HRG occurs.
    Response: The foundation installation impact pile driving PAM 
monitoring zone for NARW is 10 km and any detection within this zone 
would trigger a delay or shutdown of pile driving. Clearance or shut 
down for NARW would also occur if a whale is visually detected at any 
distance by foundation installation PSOs. These requirements are more 
protective than those recommended by the commenter. While the minimum 
visibility zone is construction scenario-specific (table 32) but less 
than the recommended 5,000 m, it is based on the largest modeled Level 
A harassment ER95% for NARW. Any larger zone could result in delays to 
the project that could adversely impact marine mammals by extending 
construction. Further, this is the minimum distance that must be 
visually cleared, and NMFS anticipates that on many occasions, the 
ability to detect NARW beyond this zone will be obtainable.
    Vibratory pile driving would occur at the cable landfall location 
to install cofferdam sheet piles and goal posts. The distances to the 
Level A harassment thresholds from this activity are very small (i.e., 
less than 200 m for all marine mammal species). While the distance to 
the Level B harassment threshold is not small (i.e., approximately 
9.7km for all marine mammal species), clearing 5,000 km before 
beginning vibratory driving is not practical. The commenter did not 
provide scientific information supporting their recommendation for such 
a large clearance zone. The commenter also recommended a PAM clearance 
zone of 2 km during vibratory pile driving; however, PAM is not 
required during this activity given it is an activity that would be 
very limited in duration (a maximum of 12 days), produces relatively 
low noise levels, and is expected to result in a limited number of 
takes. NMFS has determined that the current clearance zones, along with 
other mitigation measures, affect the least practicable adverse impact 
on marine mammal species or stocks and their habitat.
    As described in the proposed rule and this final rule for HRG 
surveys, the required 500-m shutdown zone for NARW exceeds the modeled 
distance to the largest 160-dB Level B harassment isopleth (141 m 
during sparker use) by a large margin, minimizing the likelihood that 
they will be harassed in any manner by this activity. Commenters do not 
provide additional scientific information for NMFS to consider to 
support their recommendation to expand the zones to 1,000 m. Given that 
these surveys are relatively low impact, and that NMFS has prescribed a 
precautionary NARW clearance and shutdown zone that is larger (500 m) 
than the largest estimated Level B harassment zone (141 m), NMFS has 
determined that an increase in the size of the zones to 1,000 m is not 
necessary to affect the least practicable adverse impact.
    Finally, a soft-start to impact pile driving and ramp-up to HRG 
surveys was included in the proposed rule and is included in this final 
rule. The rule specifies that if an acoustic source is shut down for a 
period longer than 30 minutes, then all clearance and ramp-up 
procedures must be initiated. However, if an acoustic source is shut 
down for reasons other than mitigation (e.g., mechanical difficulty) 
for less than 30 minutes, it may be activated again without ramp-up 
only if PSOs have

[[Page 45304]]

maintained constant observation and no additional detections of any 
marine mammal occurred within the respective shutdown zones.
    Comment 14: A commenter asserted an independent review of 
mitigation measures should be required due to limitations associated 
with visual monitoring and PAM.
    Response: The MMPA does not require an independent review of 
mitigation measures. It does require notice and opportunity for public 
comment (16 U.S.C. 1371(a)(5)(A)(i)). The public comment period is a 
means by which the public (i.e., independent reviewers) are able to 
provide NMFS with mitigation measure recommendations supported by 
scientific evidence that NMFS takes into consideration when finalizing 
the rulemaking.
    Comment 15: A commenter recommended shutdown should be initiated if 
weather or other conditions limit the range of observation.
    Response: The comment refers to a 500 m shutdown zone for NARW; 
therefore, NMFS assumes the recommendation is referring to HRG surveys, 
which are a low impact activity. As described in the proposed rule and 
this final rule, PSOs are required to monitor the shutdown zone during 
operations. During periods of low visibility, alternative monitoring 
technology (i.e., infrared or thermal cameras) must be used to monitor 
these zones. This final rule clarifies that when the shutdown zones 
become obscured for brief periods (i.e., no more than 30 minutes) due 
to inclement weather, survey operations may continue (i.e., no shutdown 
is required) so long as no marine mammals have been detected. Further, 
the shutdown requirement is waived for certain genera of small 
delphids. As noted above, take of marine mammals from HRG surveys is 
limited overall, take by Level B harassment only is expected to occur 
only within a small area in close proximity to the vessel, and no Level 
A harassment is expected to result from exposure to the surveys even in 
the absence of mitigation. There is a low likelihood that short periods 
of obscured visibility might potentially coincide with a marine mammal 
entering the shutdown zone and a shutdown not occurring. While such an 
event may result in a higher-level exposure than would occur if the 
shutdown happened, such an exposure would still not be expected to 
result in a Level A take and would be brief and not change the number 
of takes or our evaluation of their likely effects, which are expected 
to be comparatively minor. Additionally, the frequent delay and/or 
cessation of HRG surveys creates operational challenges and 
impracticalities for applicants. Altogether, the required measures 
affect the least practicable adverse impact on the affected species.
    Comment 16: For HRG survey activities, a commenter questioned why 
the NARW is given an exclusion zone for ramp up and ramp down 
procedures equal to 500 meters, while all other baleen whales that hear 
in the exact same profile, are only given an exclusion zone range from 
100-141 m, even though they hear equally as well as the NARW.
    Response: While baleen whales have similar hearing capabilities, 
given the baseline status and condition of NARW, NMFS determined that 
enhanced mitigation measures are necessary to affect the least 
practicable adverse impact on the species. The largest Level B 
harassment zone for HRG acoustic sources is 141 m. Extending clearance 
zones for other baleen whales from 100 m to 500 m could result in HRG 
surveys extending over longer time periods. Extending the time over 
which surveys are conducted could potentially lead to adverse impacts 
on marine mammals (e.g., Southall et al., 2021). In consideration of 
the size of the Level B harassment zone and the potential consequences 
of extending survey time, NMFS has determined that the mitigation 
measures for HRG surveys effect the least practicable adverse impact on 
non-NARW baleen whales.
    Comment 17: A commenter recommended prohibiting all planned 
activities on days or periods where reduced visibility conditions 
occur, as well as at night due to concerns over the ability to monitor 
the clearance zone and increased risk of vessel strikes in the case 
that various construction vessels are operating at night. Another 
commenter recommended if, under rare circumstances pile driving must 
proceed after dark for safety reasons, a summary of the frequency of 
these exceptions be publicly available to ensure they are the exception 
and not the norm for the project.
    Response: NMFS acknowledges the limitations inherent in visual 
detection of marine mammals at night. In order for Sunrise Wind to 
conduct nighttime pile driving activities, it must submit and NMFS must 
approve a Nighttime Monitoring Plan that reliably demonstrates the 
efficacy of its night vision methods. In this final rule, NMFS has 
clarified that this includes a description of how Sunrise Wind will 
monitor pile driving activities during reduced visibility conditions 
(e.g., rain, fog) and at night, including proof of the efficacy of 
monitoring devices (e.g., mounted thermal/infrared camera systems, 
hand-held or wearable night vision devices NVDs, spotlights) in 
detecting marine mammals over the full extent of the required clearance 
and shutdown zones. All impact pile driving activities must have visual 
monitoring paired with PAM, increasing the likelihood that NARW and 
opportunistically, other marine mammals, will be detected. NMFS 
emphasizes that there are benefits to completing the pile driving 
activities in a shorter total amount of time, in that some number of 
marine mammals (i.e., those that might intersect the much larger Level 
B harassment zone) would be exposed to fewer overall days of pile 
driving noise and potentially a smaller magnitude or severity of 
behavioral disturbance as a result given repeated exposures would be 
minimized. Therefore, NMFS has determined the current mitigation 
measures affect the least practicable adverse impact on marine mammals 
and their habitat.
    Sunrise Wind is also required to submit a Vessel Strike Avoidance 
Plan, which NMFS will also review in consideration of the vessel strike 
avoidance monitoring requirements, including the technology it would 
use to monitor for marine mammals at night and the effectiveness of 
that technology. NMFS notes any vessel strike would be unlawful, and 
Sunrise Wind is required to immediately report the incident to NMFS, 
cease activities, and work with NMFS to determine the best course of 
action.
    NMFS does not plan to make the weekly or monthly reports publicly 
available; however, it will make the final reports available, which 
must summarize all of the information contained in the weekly and 
monthly reports.
    The proposed rule and this final rule do not restrict the timing of 
HRG survey activities. There is no evidence that mortality or Level A 
harassment is an outcome of HRG survey noise exposure, the Level B 
harassment zones are small (i.e., no more than 141 m), and HRG survey 
PSOs are required to use alternative technology to monitor the 
mitigation zones at night. Therefore, the mitigation zones are able to 
be effectively monitored at night. Further, ramp-up may occur at 
nighttime if appropriate visual monitoring has occurred with no 
detections of marine mammals in the 30 minutes prior to beginning ramp-
up. The commenter did not provide justification for why, with the use 
of two PSOs and alternative detection technology, the mitigation

[[Page 45305]]

zones cannot be effectively monitored. Furthermore, restricting the 
ability of the applicant to begin operations only during daylight hours 
could result in the applicant failing to collect the data they have 
determined is necessary within the specific timeframe and, 
subsequently, may necessitate the need to conduct additional surveys in 
the future across additional days. No Level A harassment is expected to 
result from exposure to HRG equipment, even in the absence of 
mitigation, given the characteristics of the sources planned for use 
(supported by the very small estimated Level A harassment zones; i.e., 
<36.5 m (119.8 ft) for all sources).
    Regarding Level B harassment, any potential impacts from HRG survey 
noise exposure are expected to be limited to short-term, minor (e.g., 
slight avoidance) behavioral responses. In consideration of the effects 
of the activity on marine mammals, the fact PSOs would utilize 
alternative technology at night, the potential unintended consequences 
of the measures as proposed by the commenters, NMFS has determined that 
the HRG mitigation measures affect the least practicable adverse impact 
on marine mammals and their habitat and no additional restrictions are 
warranted.
    Comment 18: The Commission recommends that in the final rule, NMFS 
should: (1) specify which model-estimated zones (i.e., acoustic ranges, 
exposure ranges, mitigation zones, monitoring zones) and which metrics 
(i.e., flat Rmax, flat R95%) should be compared to the in situ measured 
Level A and B harassment zones; (2) specify which type of in situ Level 
A harassment zone (i.e., acoustic or exposure ranges) should be 
calculated; (3) require Sunrise Wind to conduct additional in situ 
measurements for monopiles that are not represented by the previous 
three locations (i.e., substrate composition, water depth) or by the 
hammer energies and numbers of strikes needed to install a pile in a 
given day or number of piles installed in a given day; and (4) require 
Sunrise Wind to deploy a minimum of three hydrophones for SFV during 
impact pile driving of monopiles and two hydrophones and one pressure 
transducer for SFV during UXO/MEC detonations. The Commission also 
recommends that NMFS require Sunrise Wind to determine (1) root-mean-
square SPL (SPLrms) and single-strike SEL (SELs-s) source levels and 
(2) ranges to (a) mortality, (b) Level A harassment based on slight 
lung injury, slight gastro-intestinal (GI) injury, and permanent 
threshold shift (PTS), and (c) Level B harassment based on temporary 
threshold shift (TTS) and behavior. The also recommended NMFS require 
Sunrise Wind to include in the interim SFV reports (1) number of 
strikes for impact pile driving, (2) the type(s) and location(s) of the 
sound attenuation systems, (3) SELcum for impact pile driving and UXO 
detonations, and (4) ranges to (a) Level A harassment (PTS for impact 
pile driving and UXO detonations) and (b) Level B harassment (TTS for 
UXO detonations and behavior for impact pile driving and UXO 
detonations). In the final SFV reports, the Commission recommended 
Sunrise Wind include (1) the impulse metric (in Pa-sec) for UXO 
detonations, (2) ranges to Level A harassment (PTS) and Level B 
harassment (behavior) for impact pile driving, (3) ranges to mortality, 
Level A harassment (slight lung injury, slight GI injury, and PTS), and 
Level B harassment (TTS and behavior) for UXO detonations, (4) source 
levels at 10 m during wind turbine operations, (5) received levels at 
50 m, 100 m, and 250 m from the wind turbine during operations, and (6) 
operational parameters (i.e., direct drive/gearbox information, turbine 
rotation rate), sea state conditions, and any nearby anthropogenic 
activities when monitoring operational sound.
    Response: NMFS agrees with most of the Commission's recommendations 
on reporting and have added metrics recommended in this final rule 
where they were not included or unclear in the proposed rule. The 
following provides a summary of those recommendations NMFS does not 
agree with or where NMFS has provided alternative measures. NMFS is not 
at this time requiring rms source levels as those can be deduced from 
the SEL levels. NMFS is also not specifying the distances at which 
operational noise be measured as recommended by the Commission but will 
assess the proposal by the developer in their SFV plan. In this final 
rule, NMFS is requiring Sunrise Wind conduct abbreviated SFV on all 
piles, which is more than is recommended by the Commission. In 
addition, for complete SFV, NMFS is requiring four recorders (each 
equipped with two hydrophones) to be used as well as an additional 
recorder at a 90 degrees (total of 10 hydrophones), which is well above 
that recommended by the Commission. Sunrise Wind is also required in 
this final rule to measure pressure during all UXO/MEC detonations with 
a pressure transducer.
    Comment 19: The Commission recommends that NMFS allow for public 
comment on Sunrise Wind's PAM Plan prior to issuing any final rule; 
require wind energy applicants to submit a PAM plan and SFV plans prior 
to the agency publishing any proposed rule; ensure that any PAM plan 
include, at a minimum, information on the minimum number, type (e.g., 
moored, drifting, or towed), location, bandwidth/sampling rate, 
estimated acoustic detection range, or sensitivity of the hydrophones 
or the detection software (e.g., PAMGUARD) that would be used; and 
discuss with Sunrise Wind whether the operator would use vector sensors 
in addition to hydrophones to enhance detections, particularly of those 
vocalizations that may be drowned out by the hammer strikes and 
resulting reverberation.
    Response: Due to other concurrent permitting processes and 
acknowledging the need for flexibility and project-specific 
implementation, NMFS disagrees these Plans must be submitted prior to 
promulgating the final rule. The purpose of the Plans is for the 
developer to provide to NMFS details on how they would satisfy the 
criteria identified in the rule. These criteria are available for 
public review and comment. NMFS does not specify the Commission's 
reporting recommendations; however, it does require a description of 
all proposed PAM equipment, procedures, and protocols, including 
evidence that vocalizing NARW will be detected within the clearance and 
shutdown zones, as well as how the proposed passive acoustic monitoring 
must follow standardized measurement, processing methods, reporting 
metrics, and metadata standards for offshore wind. Sunrise Wind's 
responses to these requirements will address the Commission's 
recommendations.
    Comment 20: Commenters recommended that NMFS should expand the 
visual monitoring (PSO) and acoustic monitoring (PAM) requirements for 
the project. They recommended that PSO staffing levels should be 
increased to a minimum of four PSOs on each monitoring platform, with 
at least two on duty at all times, and be supplemented with drones 
during periods of darkness or poor visibility. They also recommended 
PAM should be required during vibratory pile driving, and HRG surveys; 
have a minimum detection range of 10,000 m during pile driving; and be 
undertaken from a vessel other than the pile driving vessel or from a 
stationary unit to avoid the hydrophone being masked by construction 
related noise. Finally, the commenters recommended that visual and 
acoustic monitoring should begin 60 minutes prior to vibratory pile 
driving.

[[Page 45306]]

    Response: Regarding the number of PSOs, NMFS notes that the 
proposed rule required a minimum of four PSOs actively observing marine 
mammals before, during, and after (specific times described below) the 
installation of monopiles (two on the pile driving platform and two on 
a secondary PSO vessel). In light of other public comments regarding 
monitoring, NMFS has increased this requirement to 3 on-duty PSOs per 
vessel platform for a minimum of six on-duty PSOs monitoring before, 
during, and after foundation installation impact pile driving.
    NMFS has expanded the visual and acoustic monitoring requirements 
in this final rule and has established a 10 km PAM monitoring zone for 
NARW (and opportunistically other marine mammals) during foundation 
impact pile driving and the PAM system be at least 1 km from the pile 
driving vessel. In this final rule, NMFS has increased the number of 
on-duty PSOs on the pile driving vessel from two to three. NMFS notes 
that the proposed rule and this final rule limit the number of 
consecutive PSO watch hours and, therefore, Sunrise Wind must ensure it 
has enough PSOs on staff to meet on-duty requirements. NMFS is not 
requiring drones to be used at this time and the commenters did not 
provide information supporting the recommendation that they be used 
when considering the extensive PSO monitoring required.
    NMFS is not requiring PAM during HRG surveys and vibratory pile 
driving and the commenters do not provide additional scientific 
information for NMFS to consider to support their recommendation to 
require PAM during these activities. NMFS disagrees that this measure 
is warranted during HRG surveys because it is not expected to be 
effective for use in detecting the species of concern given the noise 
from the vessel because the flow noise, and the cable noise are in the 
same frequency band and will mask the vast majority of baleen whale 
calls. Vessels produce low-frequency noise, primarily through propeller 
cavitation, with main energy in the 5-300 Hz frequency range. Source 
levels range from about 140 to 195 decibel (dB) re 1 [mu]Pa 
(micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on 
factors such as ship type, load, and speed, and ship hull and propeller 
design. Studies of vessel noise show that it appears to increase 
background noise levels in the 71-224 Hz range by 10-13 dB (Hatch et 
al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems 
employ hydrophones towed in streamer cables approximately 500 m behind 
a vessel. Noise from water flow around the cables and from strumming of 
the cables themselves is also low frequency and typically masks signals 
in the same range. Experienced PAM operators (Thode et al., 2017) 
emphasized that a PAM operation could easily report no acoustic 
encounters, depending on species present, simply because background 
noise levels rendered any acoustic detection impossible. The same 
report stated that a typical eight-element array towed 500 m behind a 
vessel could be expected to detect delphinids, sperm whales, and beaked 
whales at the required range but not baleen whales due to expected 
background noise levels (including seismic noise, vessel noise, and 
flow noise).
    While NMFS agrees that PAM can be an important tool for augmenting 
detection capabilities in certain circumstances (e.g., foundation 
installation), its utility in further reducing impacts during HRG 
survey activities and vibratory pile driving is limited. For HRG 
surveys, the area expected to be ensonified above the Level B 
harassment threshold is relatively small (a maximum of 141 m); this 
reflects the fact that the source level is comparatively low and the 
intensity of any resulting impacts would be lower level and, further, 
it means that inasmuch as PAM will only detect a portion of any animals 
exposed within a zone, the overall probability of PAM detecting an 
animal in the harassment zone is low (particularly because of flow 
noise masking vocalizations). Together, these factors support the 
limited value of PAM for use in reducing take for activities/sources 
with smaller zones. Additionally, PAM is only capable of detecting 
animals that are actively vocalizing, while many marine mammal species 
vocalize infrequently or during certain activities, which means that 
only a subset of the animals within the range of the PAM would be 
detected (and potentially have reduced impacts). Further, localization 
and range detection can be challenging under certain scenarios. For 
example, odontocetes are fast moving and often travel in large or 
dispersed groups which makes localization difficult while porpoises and 
delphinid echolocation clicks are high frequency with limited detection 
ranges.
    The only vibratory pile driving that would occur is during 
installation and removal of sheet piles at the cofferdam site and pier 
pile installation at Smith Point County Park, the latter of which is 
not expected to result in take of marine mammals. Vibratory 
installation of sheet piles is a relatively quiet pile installation 
method when compared to impact pile driving with lower impacts and 
would occur over a short durations (i.e., approximately one month 
intermittently). The use of PAM is not typically required during 
similar coastal construction pile driving projects, as PSOs are 
sufficient to monitor for marine mammals. This work would also occur in 
shallow water; therefore, any marine mammals should be reliably 
detected within 30 minutes prior to pile driving when PSO monitoring 
would begin as animals would not be diving to depth that require longer 
dive times. Further, the commenters did not provide scientific evidence 
suggesting 30 minutes is not an adequate amount of time to detect 
marine mammals to enact mitigation, where applicable. Therefore, NMFS 
is not requiring 60 minutes of monitoring prior to beginning cable 
landfall pile driving as it has determined it affects the least 
practicable adverse impact.
    Given that the effects to marine mammals from the types of HRG 
surveys and vibratory pile driving authorized are expected to be 
limited to low-level, behavioral harassment even in the absence of 
mitigation and the cost and impracticability of implementing a full-
time PAM program, NMFS has determined the current requirements for 
visual monitoring are sufficient to effect the least practicable 
adverse impact on the affected species or stocks and their habitat 
during these activities.
    Comment 21: A commenter suggested that NMFS should improve data 
transparency for the reporting measures by requiring that all reports 
and data be accessible to the public; require immediate reporting of 
all visual and acoustic detections of NARW and dead/injured/entangled 
marine mammals, if possible, to the appropriate authority but no later 
than the end of the protected species observer's shift; and require 
reporting to NMFS and the public whenever an exemption was taken to 
implementing a mitigation measure (e.g., shutdown did not occur due to 
safety concerns).
    Response: The commenter's recommendations to report all visual and 
acoustic detections of NARW and any dead, injured, or entangled marine 
mammals to NMFS are consistent with the proposed rule and this final 
rule. NMFS recognizes the potential for intermittent communication 
issues at sea and these issues may last longer than a maximum PSO shift 
(i.e., four hours). Therefore, NMFS is requiring these reports be made 
as soon as possible but no later than 24 hours.
    Neither the MMPA nor its implementing regulations require NMFS

[[Page 45307]]

to make monitoring reports publicly available. However, it is NMFS long 
standing practice to make final incidental take authorization 
monitoring reports available to the public via our website. In both the 
proposed rule and this final rule, NMFS requires Sunrise Wind to submit 
annual marine mammal monitoring reports (which include documenting 
instances where allowable exemptions were taken) and final SFV 
monitoring reports; the final versions of these reports will be posted 
on NMFS' website). NMFS also requires weekly and monthly reporting; 
however, these reports are a means by which to check compliance with 
the rule. NMFS does not intend to make these publicly available. 
Further, as NARW sightings are reported by Sunrise Wind, they will be 
made publicly available on WhaleMap (https://whalemap.org/whalemap.html) while acoustic detections of NARW and other large whale 
species will be available to the public on NOAA's Passive Acoustic 
Cetacean Map website (https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map).
    Comment 22: A commenter recommended NMFS should set more frequent 
reporting requirements for NAS and require independent compliance 
evaluators.
    Response: In addition to the SFV reporting included in the proposed 
rule for complete SFV, this final rule requires Sunrise Wind to conduct 
abbreviated SFV on all foundation piles for which complete SFV is not 
conducted with frequent reporting in weekly reports. Frequent SFV 
reporting will allow NMFS to evaluate Sunrise Wind's compliance with 
the need to reduce distances to NMFS harassment isopleths to at or 
below those modeled assuming 10 dB attenuation. NMFS is not requiring 
independent compliance evaluators. These reports will be reviewed by 
NMFS staff with specialized expertise.
    Comment 23: A commenter asserted the use of PSOs and PAM is not 
sufficient or effective, particularly for NARW and calves, as well as 
during UXO detonations and construction of multiple and adjacent 
projects and requested the final rule detail the effectiveness of PAM 
for detecting NARW, including mothers and calves, during pile driving 
and UXO detonation occurring simultaneously with other projects.
    Response: The commenter did not provide any scientific evidence 
that visual monitoring for NARW is not effective and therefore, is not 
supported. Regarding the assertion that PAM is also not effective, the 
commenter cited Parks et al. (2019). As evident from the title of the 
paper, ``Acoustic crypsis in communication by NARW mother-calf pairs on 
calving grounds'', all data collected to support the findings from that 
paper were from calving grounds off the coasts of Georgia and Florida. 
Habitat use and age classes are different between calving ground and 
southern New England, which hosts older animals and those engaged in 
foraging and socialization, making findings in the referenced paper not 
applicable to the Sunrise Wind project area. Furthermore, there is 
ample scientific evidence to support PAM is an effective tool for 
monitoring for NARW (e.g., Davis et al., 2017, Van Parijs et al. 
(2021)) with recent literature indicating PAM was able to detect NARW 
in the Massachusetts and Rhode Island Wind Energy Areas monitored, 
including where the Sunrise Wind's Lease Area is located on, in certain 
months of the year, a daily basis (Davis et al. 2023). Together, visual 
and PAM approaches are well understood to provide best results when 
combined together (e.g., Barlow and Taylor, 2005; Clark et al., 2010; 
Gerrodette et al., 2011. For these reasons, NMFS finds that the suite 
of visual and acoustic monitoring measures in the proposed rule and 
carried forward in this final rule are based on the best available 
scientific information and are effective at detecting NARW.
    Comment 24: A commenter requested an increase in the frequency of 
information review for adaptive management to occur on a quarterly 
basis, that these quarterly reports be made publicly available, and for 
NMFS develop a mechanism to undertake these reviews on an ad hoc basis 
if a serious issue is identified.
    Response: Regarding the recommendation that NMFS have a mechanism 
in place to undertake review and adaptive management on an ad hoc basis 
if a serious issue is identified, there are no timing restrictions in 
the adaptive management provisions and therefore, NMFS may undertake 
review and adaptive management actions at any time under the 
regulations, as written. Regarding the recommendation to increase the 
frequency of information review, Sunrise Wind is required to submit 
weekly, monthly, and annual reports that NMFS will review in a timely 
manner and may act on pursuant to the adaptive management provisions at 
any time and, therefore, a separate specific quarterly review is 
unnecessary.
    Comment 25: A commenter recommended that sound source validation 
reports of field measurements must be evaluated by NOAA Fisheries prior 
to additional piles being installed and be made publicly available and 
that SFV be on the first pile installed and from a random sample of 
piles throughout the construction period.
    Response: NMFS notes that, as proposed, this final rule requires 
that no unmitigated piles can be installed and that SFV is required for 
piles to ensure that measured sound levels do not exceed those modeled 
assuming 10 dB of attenuation. NMFS acknowledges the importance of 
transparency in the reporting process and plans to make all final 
annual SFV reports available on our website.
    Comment 26: A commenter requested that NMFS: (1) explain whether or 
not Level B necropsies will be conducted on all animals that may wash 
ashore during construction activities to examine for auditory injury 
and/or lung and gastrointestinal injury; (2) how or if those results 
will be made public and available in a timely manner, if such injury is 
discovered if or how this would be attributed to any particular project 
or offshore wind construction activity; and (3) what steps NMFS would 
take as a result.
    Response: The MMPA established the Marine Mammal Health and 
Stranding Response Program (MMHSRP). It 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 networks respond, when safe 
and feasible, to document and recover carcasses. It does not and cannot 
respond to every stranded marine mammal, and it is not responsible for 
disposing of carcasses. The type of examination conducted varies and 
depends on availability of resources, location, carcass accessibility, 
and the decomposition state. A necropsy report, when written, includes 
data which are compiled over several weeks to months and then analyzed 
for a possible cause of death determination and findings. National and 
Regional summaries of stranding statistics are available at: https://www.fisheries.noaa.gov/resource/publication-database/marine-mammal-health-and-stranding-response-program-reports. NMFS may modify these 
regulations and the LOA based on new information it considers the best 
available science. If this science indicates the takings allowed under 
these regulations may be having more than a negligible impact, NMFS 
must

[[Page 45308]]

suspend or withdraw the LOA after notice and opportunity for public 
comment.
    Comment 27: Several commenters disagreed with NMFS' negligible 
impact determination, particularly for NARW. Comments claimed that NMFS 
did not: (1) consider the imperiled population status of NARWs; (2) 
evaluate the cumulative effects of all projects (e.g., offshore wind 
construction and operational noise and site characterization surveys 
and baseline urbanized background levels of ambient noise which result 
in stress); (3) meaningfully examine the effects of the loss of 
communication space on marine mammals and, further, seems to 
misapprehend the spatial and temporal scope of the effects; (4) 
consider that any effect to the small number of breeding females can 
adversely affect fecundity and imperil the species; and (5) consider 
whether abandonment of habitat that was designated with the express 
purpose of preventing vessel strikes would push the species further 
into a vessel traffic corridor, thereby elevating the risk to the 
species nor evaluated all the risks to NARW by habitat displacements as 
sublethal take has can a measurable effect due to the small population.
    Response: NMFS is required to authorize the requested incidental 
take if it finds the total incidental take of small numbers of marine 
mammals by U.S. citizens ``while engaging in that (specified) 
activity'' within a specified geographic region during the 5-year 
period (or less) will have a negligible impact on such species or stock 
and, where applicable, will not have an unmitigable adverse impact on 
the availability of such species or stock for subsistence uses (16 
U.S.C. 1371(a)(5)(A)). Negligible impact is defined as ``an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effect on annual rates of recruitment or 
survival'' (50 CFR 216.103). Consistent with the preamble of NMFS' 
implementing regulations (54 FR 40338, September 29, 1989), the impacts 
from other past and ongoing anthropogenic activities are factored into 
the baseline, which is used in the negligible impact analysis. Here, 
NMFS has factored into its negligible impact analysis the impacts of 
other past and ongoing anthropogenic activities via their impacts on 
the baseline (e.g., as reflected in the density/distribution and status 
of the species, population size and growth rate, and other relevant 
stressors).
    The preamble of NMFS' implementing regulations also addresses 
cumulative effects from future, unrelated activities. Such effects are 
not considered in making the negligible impact determination under 
section 101(a)(5) of the MMPA. NMFS considers: (1) cumulative effects 
that are reasonably foreseeable when preparing a National Environmental 
Policy Act (NEPA) analysis; and (2) reasonably foreseeable cumulative 
effects under section 7 of the ESA for ESA-listed species, as 
appropriate. Accordingly, NMFS has adopted and reviewed BOEM's EIS and 
as part of its inter-agency coordination. This EIS addresses cumulative 
impacts related to the Project and substantially similar activities in 
similar locations. Cumulative impacts regarding the promulgation of the 
regulations and issuance of an LOA for construction activities planned 
by Sunrise Wind, have been adequately addressed in the adopted EIS that 
supports NMFS' determination that this action has been appropriately 
analyzed under NEPA. Separately, the cumulative effects of the Project 
on ESA-listed species, including the NARW, were analyzed under section 
7 of the ESA when NMFS engaged in formal inter-agency consultation with 
NOAA's Greater Atlantic Regional Fisheries Office (GARFO). The 
Biological Opinion for the Project determined that NMFS' promulgation 
of the rulemaking and issuance of an LOA for construction activities, 
individually and cumulatively, are likely to adversely affect, but not 
jeopardize, listed marine mammals.
    NMFS disagrees that its negligible impact determination is flawed 
or not supported. NMFS fully disclosed the imperiled status of NARW in 
the Description of Marine Mammals in the Area of Specified Activity 
section of the proposed rule. The proposed rule, as well as this final 
rule by reference, fully explains the impacts to NARW is expected to be 
limited to low-level behavioral harassment (e.g., temporary avoidance 
or cessation of foraging). The proposed rule also described the 
potential effects of behavioral disturbance on marine mammal fitness 
and that, based on the best available science, behavioral disturbance 
resulting from Sunrise Wind's activities is not expected to impact 
individual animals' health or have effects on individual animals' 
survival or reproduction, thus no detrimental impacts at the population 
level are anticipated. The commenters do not provide scientific 
evidence that suggests otherwise. Specifically, the commenters did not 
provide evidence that any effect to a breeding female would result in 
reduced fecundity.
    Commenters suggested NMFS did not meaningfully evaluate loss of 
communication space; however, the Effects on Marine Mammals and Their 
Habitat section in the proposed rule contained an analysis on the 
impacts of masking both in general and from the specified activities.
    NMFS acknowledges that whales may temporarily avoid the area where 
the specified activities occur. However, NMFS does not anticipate, 
based on the best available science, that whales will abandon their 
habitat, as suggested by a commenter, or 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. The primary 
activity that is anticipated to result in temporary avoidance of the 
otherwise used habitat is foundation installation impact pile driving. 
Not only would this activity be limited to times of year when NARW 
presence is low, pile driving would be intermittent, and pile driving 
would only occur for a limited time (i.e., approximately 348 hours plus 
the installation of an OCS-DC in one day) over the course of two years. 
Together, these factors further reduce the likelihood that this species 
would be in close enough proximity to the activity to engage in 
avoidance behavior to the degree it would move into an area of risk 
(which would be closer to shore) that it could be struck by another 
vessel.
    Comment 28: Commenters questioned the validity of NMFS' small 
numbers analysis on the basis that the numbers do not account for the 
cumulative take numbers from previous, ongoing, or potential projects. 
One commenter also requested NMFS clarify the definition of and 
thresholds for a small numbers determination.
    Response: NMFS has provided a reasoned approach to small numbers, 
as described in the final rule, ``Taking Marine Mammals Incidental to 
Geophysical Surveys Related to Oil and Gas Activities in the Gulf of 
Mexico'' (86 FR 5322 at 5438, April 19, 2021). Utilizing that approach, 
NMFS has made the necessary small numbers finding for all affected 
species and stocks in this case (Small Numbers section of this preamble 
for more detail). Neither the MMPA nor our implementing regulations 
require the small numbers analysis to consider take from previous, 
ongoing, or potential projects.

[[Page 45309]]

    Comment 29: Commenters suggested that NMFS failed to account for 
the cumulative (or additive) impacts on marine mammal species in the 
Sunrise Wind analysis and that NMFS should evaluate the cumulative 
impacts of ongoing and future OSW projects rather than evaluating 
projects individually. They provide that NMFS must consider the total 
number of takes proposed to be authorized across all wind projects and 
must fully consider the discrete effects of each activity and the 
cumulative effects of the suite of approved, proposed, and potential 
activities on marine mammals, including NARWs, and ensure that the 
cumulative effects are not excessive before issuing an LOA.
    Response: Neither the MMPA nor NMFS' implementing regulations call 
for consideration of the take resulting from other specified activities 
in the negligible impact analysis. The preamble to NMFS' implementing 
regulations 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 
(54 FR 40338, September 29, 1989). 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 final rule for the MMPA implementing regulations also 
addressed public comments regarding cumulative effects from future, 
unrelated activities (54 FR 40338, September 29, 1989). There, NMFS 
stated that such effects are not considered in making findings under 
section 101(a)(5) concerning negligible impact. In this case, this 
incidental take regulation (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) of the MMPA 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 (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, 
Sunrise Wind was the applicant for the ITR, and NMFS is 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, NMFS also indicated: (1) that it 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 (54 FR 40338, September 
29, 1989). Accordingly, NMFS has adopted an EIS written by BOEM and 
reviewed by NMFS as part of inter-agency coordination. This EIS 
addresses cumulative impacts related to Sunrise Wind 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 Sunrise Wind, have 
been adequately addressed under NEPA in the adopted EIS that supports 
NMFS' MMPA decision. Separately, the cumulative effects of Sunrise Wind 
on ESA-listed species, including NARW, was analyzed under section 7 of 
the ESA when NMFS engaged in formal inter-agency consultation with 
GARFO. The Biological Opinion for Sunrise Wind 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.
    Comment 30: Several commenters claimed the request for an ITA 
should be denied alleging the specified activities kill marine mammals, 
and some commenters suggested that the ongoing whale UMEs, including 
the whale deaths occurring in the winter of 2022-2023, are linked with 
ongoing offshore wind survey work (i.e., HRG surveys). One commenter 
claimed the burden is on NMFS to prove, with evidence, that there is no 
association between HRG surveys and whale injuries, including 
``rectified diffusion'' deaths, or otherwise assume that offshore wind 
activity has contributed to these deaths. A commenter also asserted 
that the activities covered by the ITR and associated LOA are 
reasonably likely to result in Level A take of NARWs that are not 
covered by the authorization's terms.
    Response: Neither the proposed rule nor this final rule allow 
mortality or serious injury of marine mammals to be authorized. The 
best available science indicates that the anticipated impacts from the 
specified activities potentially include avoidance, cessation of 
foraging or communication, TTS and PTS, stress, masking, etc. (as 
described in the Effects of the Specified Activities on Marine Mammals 
and their Habitat section in the proposed rule). NMFS emphasizes that 
there is no evidence that noise resulting from offshore wind 
development-related specified activities would cause marine mammal 
strandings and that there is no evidence linking recent large whale 
mortalities and currently ongoing offshore wind activities. The 
commenters offer no such evidence or other scientific information to 
substantiate their claim. This point has been well supported by other 
agencies, including BOEM and the Marine Mammal Commission (Marine 
Mammal Commission Newsletter, Spring 2023).
    There is an ongoing UME for humpback whales along the Atlantic 
coast from Maine to Florida, which includes animals stranded since 
2016, and NMFS provides further information on the humpback UME in the 
humpback whale subsection in the Description of Marine Mammals in the 
Specific Geographic Region section of this final rule.
    Partial or full necropsy examinations were conducted on 
approximately half of the whales that recently stranded along the U.S. 
east coast. 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 (i.e., 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 Sunrise Wind'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. More

[[Page 45310]]

information about interactions between offshore wind energy projects 
and whales can be found at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales. The proposed rule and this final rule state that no take of 
NARW by Level A harassment, mortality, or serious injury was requested 
or proposed for authorization (see the Estimated Take and Negligible 
Impact Analysis and Determination sections), and they are not expected 
based on the best available science.
    One commenter cited literature as evidence that seismic surveys in 
the mid to low frequency range can injure, cause decompression sickness 
(i.e., the bends), and cause rectified diffusion in whales. The 
Fernandez (2005) paper cited refers to pathology results from 
necropsies conducted on beaked whales involved in a mass stranding 
event in the Canary Islands following high intensity military training 
exercises involving numerous surface warships and several submarines 
and mid-frequency tactical sonar activities. NMFS acknowledges the 
effects of these activities described by the commenter are known; 
however, the activities in that paper are not analogous to HRG surveys 
that would be conducted by Sunrise Wind to construct the Project, and 
the information presented by the commenter is not applicable due to 
many factors (e.g., pile driving is stationary, versus the sound 
sources cited, and HRG surveys utilize a much lower source level).
    Comment 31: Members of the public recommended NMFS consider the 
impacts of structure presence and operations, including those from 
operational noise on marine mammals as well as ocean mixing and 
vibrations on phytoplankton, zooplankton, and the food chain. One 
commenter suggested that NMFS did not evaluate the long-term 
operational and maintenance impacts of the project on marine mammals 
and ignored the best available science demonstrating behavioral impacts 
to marine mammals from operational turbines; therefore, NMFS' small 
numbers and negligible impact findings are arbitrary and capricious.
    Response: In the proposed rule, NMFS considered the impacts to 
marine mammals from operational noise and to their habitat, including 
prey, from the presence of structures and operations based on the best 
available science. In this final rule, NMFS has supplemented that 
analysis with new scientific information that has become available 
regarding these issues since publishing the proposed rule. This new 
information does not change our findings. The commenter did not provide 
scientific evidence that suggests the analysis within the proposed rule 
was unsupported. NMFS has fully evaluated the potential impacts of both 
issuing this final rule on marine mammals over the five-year effective 
period of this rulemaking and the potential impacts from long-term 
operations via the Biological Opinion. NMFS refers the reader to the 
Effects of the Specified Activities on Marine Mammals and Their Habitat 
section and the Negligible Impact Determination section in the proposed 
and in this final rule for further details.
    Comment 32: The Commission recommends that NMFS ensure that all 
underlying documentation used in the agency's analyses, including PSO 
reports from previous authorizations, are publicly available on its 
website prior to publishing any Federal Register notice for advance 
notice of proposed rulemakings or the proposed rules themselves.
    Response: Although not required by the MMPA or its implementing 
regulations, NMFS posts all final reports on our website when approved 
by NMFS. For reports used in its analysis, NMFS agrees that all 
underlying documentation should be readily available to the public for 
review along with the proposed rule. While it anticipates the timing is 
such that in most cases, NMFS will have a final report posted prior to 
publishing a proposed rule. In more unusual circumstances, in 
particular if a report is not due, but some preliminary information is 
available, it may not be possible to make the report publicly available 
at the same time as the proposed rule. Therefore, NMFS agrees having 
underlying documentation to support our analyses available for public 
review is the goal; however, it recognizes that this may not be 
practicable in all cases. NMFS does publish a Notice of Receipt as 
required per NMFS' implementing regulations inviting public input on an 
adequate and complete application for rulemaking. However, this stage 
does not include NMFS' analysis or preliminary determinations, and 
therefore, there is no analysis for which supporting documentation is 
needed. In general, NMFS aims to post relevant documentation as early 
as possible.
    Comment 33: The Commission understands and supports the 
Administration's push for wind energy development along the Atlantic 
coast but is concerned the push is compromising the quality of 
documents at the sake of adhering to timelines and milestones. The 
Commission recommends that NMFS prioritize conducting quality control 
and general oversight of reviewing the preambles to and the proposed 
and final rules prior to publication in the Federal Register.
    Response: NMFS is committed to producing accurate and 
scientifically-defensible documents that support our management 
decisions for incidental take authorizations and other actions and will 
continue to prioritize quality control as appropriate, given available 
resources.
    Comment 34: A commenter requested that NMFS' consideration of LOAs 
for offshore wind developers be applied equitably across industries and 
that there be a clear threshold for OSW-related takes regionally and 
across project phases.
    Response: NMFS carefully reviews models and take estimate 
methodology to authorize a number of takes, by species and manner of 
take that is a likely outcome of the Project. Sunrise Wind is required 
to submit frequent reports, which identify the number of takes applied 
to the Project.
    Fishing impacts and NMFS assessment of them generally center on 
entanglement in fishing gear, which is a very acute, visible, and 
severe impact (i.e., 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 fisheries. Neither the 
MMPA nor NMFS' implementing regulations require NMFS to analyze impacts 
to other industries (e.g., fisheries) from issuance of an ITA pursuant 
to section 101(a)(5)(A) of the MMPA. NMFS notes that the Sunrise Wind 
Final EIS assesses the impacts of both BOEM's and NMFS' actions (i.e., 
approving Sunrise Wind's activities and authorizing the associated take 
of marine mammals, respectively) on the human environment, including to 
fisheries, and NMFS considered the analysis, as appropriate, in the 
final decisions under the MMPA. 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 
(e.g., offshore wind site characterization surveys) under section 118 
of the MMPA.

[[Page 45311]]

    Comment 35: A commenter expressed concern about how the presence of 
wind turbines will impact NMFS' ability to conduct low-altitude (i.e., 
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 36: A commenter questioned the consequences and 
implications of a scenario in which the authorized incidental take 
levels are exceeded.
    Response: In the unlikely scenario that Sunrise Wind exceeds their 
authorized take levels, any further take would be unauthorized and, 
therefore, prohibited under the MMPA. Sunrise Wind could request 
additional incidental take of marine mammals from their specified 
activities. This would require NMFS to reanalyze its small numbers and 
negligible impact determinations and may require reinitiation of the 
BiOp and supplemental NEPA analysis depending on the specific facts.
    Comment 37: A commenter recommended that, consistent with the 
requirement to achieve ``the least practicable impact on such species 
or stock and its habitat,'' the LOA must include conditions for the 
survey and construction activities that will first avoid adverse 
effects on NARW in and around the area and then minimize and mitigate 
the effects that cannot be avoided.
    Response: The MMPA requires that we include measures that will 
affect the least practicable adverse impact on the affected species and 
stocks and, in practice, NMFS generally agrees with the approach 
suggested (i.e., the rule should include conditions for the 
construction activities that will first avoid adverse effects on NARW 
in and around the Project Area where practicable and then minimize the 
effects that cannot be avoided) and has generally considered mitigation 
in that way. NMFS does not agree that it ``must'' consider mitigation 
in this exact manner. NMFS has determined that this final rule meets 
this requirement to effect the least practicable adverse impact and 
described our rationale in the final rule. The commenter does not make 
any specific recommendations of measures to add to the rulemaking.
    Comment 38: A commenter requested that, due to rapid changes for 
NARW and the need to react quickly to protect the species, NMFS should 
issue 5-year ITRs but should limit LOAs to 1-year period instead of the 
proposed 5-year LOA.
    Response: While NMFS understands the reasoning behind the 
commenters' suggestion, it does not think this is necessary because the 
final rule includes requirements for annual reports (in addition to 
weekly and monthly requirements) to support frequent evaluation of the 
activities and monitoring results, and the final rule includes an 
Adaptive Management provision that allows NMFS to make modifications 
and adjustments to the measures found in the issued LOA if and when new 
information that supports necessary modifications becomes available. 
Because of this, NMFS will issue a single, 5-year LOA and modify it if 
and when necessary at any point during the effective period of the 
regulations.
    Comment 39: A commenter recommended that NMFS should only issue the 
ITR and LOA after pending regulatory rules with possible effects to 
marine mammals are finalized (e.g., BOEM's renewable energy 
modernization rule, NMFS vessel speed rule); the results of the UME 
investigations in the area are completed and available; and research 
and studies on the impacts of offshore wind development on marine 
mammals are completed as baseline information is lacking. Another 
commenter recommended no ITRs should be issued until a programmatic 
analysis of offshore wind is conducted.
    Response: The MMPA requires NMFS to evaluate the effects of the 
specified activities in consideration of the best scientific evidence 
available and to issue the requested incidental take authorization if 
it makes the necessary findings (16 U.S.C. 1371(a)(5)(A)(i)). The MMPA 
does not allow NMFS to delay issuance of the requested authorization on 
the presumption that new information or new regulations will become 
available in the future. If new information becomes available in the 
future, NMFS may modify the mitigation and monitoring measures in an 
LOA issued under these regulations through the adaptive management 
provisions. Furthermore, NMFS is required to withdraw or suspend an LOA 
if, after notice and public comment unless an emergency exists, it 
determines the authorized incidental take may be having more than a 
negligible impact on a species or stock. NMFS has duly considered the 
best scientific evidence available in its promulgation of the final 
rule and made the required findings.

Changes From the Proposed to Final Rule

    Since the publication of the proposed rule in the Federal Register 
on February 10, 2023 (88 FR 8996), NMFS has made changes, where 
appropriate, that are reflected in the preamble text of this final rule 
and in the final regulatory text. 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, which has been incorporated into this final rule as 
discussed below.
    The following changes are reflected in the Description of Marine 
Mammals in the Area of Specified Activities section of the preamble to 
this final rule:
    Given the release of NMFS' draft 2023 SARs (Hayes et al. 2024), 
NMFS has updated the population estimate used in the proposed rule 
(Hayes et al., 2022) for the NARW (Eubalaena glacialis) from 368 to 340 
and the total mortality/serious injury (M/SI) amount from 7.7 to 27.2. 
This increase is due to the inclusion of undetected M/SI (whereas 7.7 
accounted only for detected M/SI).
    Given the availability of new information, NMFS has made updates to 
the UME summaries for NARW, humpback whales, minke whales, and phocid 
seals (pinnipeds).
    The following changes are reflected in the Estimated Take section 
the preamble to this final rule:
    Since the proposed rule was published, Sunrise Wind has reduced the 
number of foundations to be installed from 94 WTGs to 87 (see Reduced 
WTG Foundations report). Therefore, the exposure estimates and take 
numbers from this activity have been slightly reduced to account for 
this reduction in activity. While the number of authorized takes 
resulting from foundation installation have decreased, the underlying 
modeling and methodologies to estimate take have not changed since the 
proposed rule.

[[Page 45312]]

    Sunrise Wind submitted adjusted take numbers for Level B harassment 
associated with HRG surveys as part of the Reduced WTG Foundations 
report. Due to the reduction on WTGs, the amount of HRG survey 
tracklines have been reduced. This change to the project results, in 
some cases, in a reduction of the number of takes that would be 
authorized under this rule. However, species in which take by Level B 
harassment for HRG was based on mean group size (i.e., Atlantic spotted 
dolphin, pilot whales, Risso's dolphin, and sperm whale) were 
originally calculated by halving the mean group size between years 1 
and 2 rather than accounting for the total mean group size for each 
year of HRG survey activity. This correction to using total mean group 
size for each year resulted in minor increased take to these species.
    The total takes by Level B harassment for blue whale was corrected 
to 8 from 7 due to a summation error (other tables in the Estimated 
Take section of the proposed rule included correct take numbers for 
blue whales and correctly added up to 8 total takes).
    The following changes are reflected in the Mitigation, and 
Monitoring and Reporting section in the preamble to this final rule:
    Based, in part, on recommendations received from the public, NMFS 
has revised the minimum visibility, shutdown, and clearance zone sizes 
for foundation installation (table 32). To simplify the various 
schedules, NMFS determined that three installation scenarios warranted 
different zone sizes assuming 10 dB attenuation: (1) sequential 
(Schedule 1 and 2); (2) concurrent (Schedule 3 and 4); and (3) OCS-DC 
only (Schedule 5) (see table 32). In addition, the minimum visibility 
zone is now based on the Level A harassment zone sizes for NARW under 
the three different construction scenarios. When Schedules were 
considered together (e.g., Schedules 1 and 2 comprise the 
``sequential'' scenario), the largest zone of the two schedules 
considered was used to develop mitigation zone sizes (see table 32). 
For OCS-DC only (Schedule 5), the clearance and shutdown zone sizes 
were set as the largest distance for the low frequency cetaceans (i.e., 
fin whale).
    NMFS has increased the PSO and PAM clearance and shutdown zone 
sizes based on the largest Level A harassment threshold distance for 
low frequency cetaceans (i.e., fin whale) based on the construction 
scenario and season. NMFS increased the PAM shutdown zone from 3.7 km 
(summer) and 4.3 km (winter) for NARW and now requires Sunrise Wind to 
shutdown foundation pile driving if a NARW is acoustically detected 
within the 10 km PAM monitoring zone.
    Due to the different zone sizes based on the three construction 
scenarios, NMFS has included a requirement that Sunrise Wind must 
select the most conservative (largest) zone sizes each day depending on 
which construction scenario is planned. If the real-world construction 
scenario for that day occurs that would have had smaller zone sizes 
than what was planned at the start of the day, Sunrise Wind may not 
decrease to the smaller zone sizes for that day (i.e., real-world 
concurrent installation does not occur though was planned at the start 
of the day and, instead, only sequential installation occurred; Sunrise 
Wind must still implement the larger concurrent installation zone 
sizes).
    NMFS has included mitigation and monitoring zones specific to the 
different UXO/MEC charge weights, rather than a single zone size 
assuming only the largest charge weight, as [Oslash]rsted has provided 
evidence to NMFS that they can reliably identify UXO/MEC charge weights 
in the field since publication of the proposed rule.
    Recognizing the extensive, frequent, and situational monitoring 
data and report requirements, NMFS clarified the language describing 
the annual or biennial review of data to inform adaptive management 
decisions to indicate that adaptive management decisions may be made at 
any time, as new information warrants it.

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.
    The following change is reflected in Sec.  217.310 (Specified 
activity and specified geographical region):
    For clarity and consistency, we revised two paragraphs in Sec.  
217.310 Specified activity and specified geographical region of the 
regulatory text to fully describe the specified activities and 
specified geographical region.
    The following change is reflected in Sec.  217.312 (Permissible 
Methods of Taking):
    NMFS added pneumatic hammering of casing pipes to the list of 
permissible methods of taking by Level B harassment as it was 
inadvertently excluded from the regulatory text but fully described and 
analyzed in preamble.
    The following changes are reflected in Sec.  217.314 (Mitigation 
requirements) and the associated Mitigation section of the preamble to 
this final rule:
    For clarity and consistency, NMFS has reorganized and revised, as 
applicable, the paragraphs in Sec.  217.314 (Mitigation requirements).
    Based on a recommendation by a commenter, NMFS added a requirement 
that all project vessels must utilize AIS.
    NMFS corrected the limitation on the number of monopiles that could 
be installed per day from 3 to 4 per day to accurately reflect the 
scenarios analyzed by Sunrise Wind in their application and as 
described in table 16 of the proposed rule.
    Given that NARW density in the Project Area increases by an order 
of magnitude from November to December and based on public comment, 
NMFS is including a requirement that foundation impact pile driving 
should be avoided in December and may only occur when unforeseen 
circumstances would otherwise preclude completion of the foundation 
installation for the project in a given year, and only with prior 
approval by NMFS. NMFS has also clarified that when a clearance zone is 
over 5 km, an aerial platform must be used unless Sunrise Wind 
determines an aerial platform is not practical and, in such case, an 
additional vessel must be used.
    NMFS updated the vessel strike avoidance measures to now specify 
that the mitigation measure apply to all Project vessels, and that if a 
NARW is detected, all vessels, not only crew transfer vessels, must 
travel at 10 kn (11.5 mph) or less. In addition, the regulatory text 
clarifies that this measure applies only when other speed restrictions 
are not in place (e.g., no DMA, SMA, or Slow Zone is established). NMFS 
has also modified a vessel strike measure that had indicated a vessel 
should slow to 10 kts if it came within an identified separation zone. 
The measure was changed to indicate that vessels should steer away from 
slow, and shift engines to neutral if the separation zone is violated. 
NMFS also clarified the situations under which a safety exemption may 
be taken from the vessel strike avoidance measures.
    For the Smith Point County Park temporary pier, NMFS now includes 
the required mitigation measures to avoid take by Level A harassment or 
Level B harassment, as Sunrise Wind has not requested take for these 
activities. These mitigation and monitoring measures are the same as 
required of cable landfall. With the addition of these measures, NMFS 
concurs with Sunrise Wind that take is not expected to occur.
    The following changes are reflected in the Sec.  217.315 
(Monitoring and reporting

[[Page 45313]]

requirements) and the associated Monitoring and Reporting section of 
the preamble to this final rule:
    For clarity and consistency, NMFS has reorganized and revised, as 
applicable, the paragraphs in Sec.  217.315 (Monitoring and reporting 
requirements).
    NMFS updated the process for obtaining NMFS approval for PSO and 
PAM Operators and have clarified education, training, and experience 
necessary to obtain NMFS' approval.
    NMFS added a requirement to have at least three PSOs on the pile 
driving vessel and any dedicated PSO vessel (or equivalent coverage) 
rather than two PSOs, as was originally described in the proposed rule.
    Based on the best available science and a recommendation by the 
Commission, NMFS added a requirement that increases the time that PAM 
data must be reviewed prior to all UXO/MEC detonations from 1 to 24 
hours (except in emergency cases where the 24-hour delay before the 
detonation occurred would create risk to human safety).
    Based on a recommendation by the Commission, NMFS added a 
requirement that a double big bubble curtain must be placed at a 
distance that would avoid damage to the nozzle holes during all UXO/MEC 
detonations. NMFS also added a requirement that a pressure transducer 
must be used during all UXO/MEC detonations.
    Since publishing the proposed rule, Sunrise Wind has finalized 
their noise attenuation systems. NMFS modified the NAS requirement 
stating that Sunrise Wind must use a double bubble curtain with AdBm 
Helmholz resonator during monopile installation and, at minimum, a 
double bubble curtain during jacket foundation pin pile installation.
    Consistent with the requirements included in the Sunrise Wind 
Biological Opinion, NMFS added additional details regarding complete 
SFV requirements and added a requirement that abbreviated SFV 
(consisting of a single recorder with a bottom and mid-water column 
hydrophone) must be conducted on every foundation for which complete 
monitoring is not conducted. NMFS also added details regarding SFV 
reporting requirements. NMFS is now requiring Sunrise Wind to deploy 
two dedicated PSOs vessels to monitor the clearance and shutdown zones 
prior to and during impact pile driving installation of monopile 
foundations. In addition to the three on-duty PSOs on the pile driving 
platform, three on-duty PSOs must be deployed on each of the dedicated 
PSO vessels to monitor for marine mammals. Similarly, NMFS is now 
requiring that Sunrise Wind deploy at least three on-duty PSOs, instead 
of two on-duty PSOs, on each observation platform for all detonations.
    Based on consideration of the Commission recommendation, NMFS has 
added additional specified reporting requirements for SFV conducted 
during UXO/MEC detonation and operations and clarified the general SFV 
reporting metrics to align with the Commission's comments.
    Given the new tools that NMFS has made available since publishing 
the proposed rule, NMFS updated how Sunrise Wind should electronically 
submit NARW detection (visual and acoustic) reports.

Description of Marine Mammals in the Area of Specified Activities

    As noted in the Changes From the Proposed to Final Rule section, 
since publication of the proposed rule (88 FR 8996, February 10, 2023), 
updates have been made to the abundance estimate for NARW and the UME 
summaries of multiple species. These changes are described in detail in 
the sections below. Otherwise, the Description of Marine Mammals in the 
Area of Specified Activities section has not changed since the 
publication of the proposed rule in the Federal Register (88 FR 8996, 
February 10, 2023).
    Sections 3 and 4 of Sunrise Wind's application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history of the potentially affected 
species (Sunrise Wind, 2021). NMFS fully considered all of this 
information, and refers the reader to these descriptions in the 
application. Additional information regarding population trends and 
threats may be found in NMFS' SARs at: 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 at: https://www.fisheries.noaa.gov/find-species.
    Table 2 lists all species or stocks for which take is authorized 
under this final rule and summarizes information related to the species 
or stock, including regulatory status under the MMPA and ESA and 
potential biological removal (PBR), where known. PBR is defined as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population as described in 
NMFS' SARs (16 U.S.C. 1362(20)). While no mortality is anticipated or 
allowed to be authorized under this rulemaking, PBR and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
table 2 are the most recent available data at the time of publication 
which can be found in NMFS' 2023 draft SARs (Hayes et al., 2024), 
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.
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[[Page 45315]]


[GRAPHIC] [TIFF OMITTED] TR22MY24.002

BILLING CODE 3510-22-C
    Of the marine mammal species and/or stocks with geographic ranges 
that include the western North Atlantic OCS (table 5 in Sunrise Wind 
ITA application), 23 are not expected to be present or are considered 
rare or unexpected in the project area based on sighting and 
distribution data. Therefore, they are not discussed further beyond the 
explanation provided here. The following species are not expected to 
occur in the project area due to the location of preferred habitat 
outside the project area based on the best scientific information 
available: Dwarf and pygmy sperm whales (Kogia sima and K breviceps), 
northern bottlenose whale (hyperoodon ampullatus), cuvier's beaked 
whale (Ziphius cavirostris), four species of Mesoplodont beaked whales 
(Mesoplodon densitostris, M. europaeus, M. mirus, and M. bidens), 
killer whale (Orcinus orca), false killer whale (Pseudorca crassidens), 
pygmy killer whale (Feresa attenuate), short-finned pilot whale 
(Globicephalus macrohynchus), melon-headed whale (Peponocephala 
electra), Fraser's dolphin (Lagenodelphis hosei), white-beaked dolphin 
(Lagenorhynchus albirotris), pantropical spotted dolphin (Stenella 
attenuata), Clymene dolphin (Stenella clymene), striped dolphin 
(Stenella coeruleoalba), spinner dolphin (Stenella longirostris), 
rough-toothed dolphin (Steno bredanensis), and the northern migratory 
coastal stock of common bottlenose dolphins (Tursiops truncatus 
truncatus). The following species may occur in the project area but at 
such low densities that take is not

[[Page 45316]]

anticipated: hooded seal (Cystophora cristata) and harp seal 
(Pagophilus groenlandica).
    There are two pilot whale species, long-finned (Globicephala melas) 
and short-finned (Globicephala macrorhynchus), with distributions that 
overlap in the latitudinal range of the Project Area (Hayes et al., 
2003; Roberts et al., 2016). Because it is difficult to differentiate 
between the two species at sea, sightings, and thus the densities 
calculated from them, are generally reported together as Globicephala 
spp. (Roberts et al., 2016; Hayes et al., 2023; Hayes et al., 2024). 
However, based on the best available information, short-finned pilot 
whales occur in habitats that are both further offshore on the shelf 
break and further south than the Project Area (Hayes et al., 2020). 
Therefore, NMFS assumes that any take of pilot whales would be of long-
finned pilot whales. Similarly, in the Western North Atlantic, there 
are two morphologically and genetically distinct common bottlenose 
morphotypes: the Western North Atlantic Northern Migratory Coastal 
stock and the Western North Atlantic Offshore stock. The Western North 
Atlantic Offshore stock is primarily distributed along the outer shelf 
and slope from Georges Bank to Florida during spring and summer and has 
been observed in the Gulf of Maine during late summer and fall (Hayes 
et al. 2020), whereas the Northern Migratory Coastal stock is 
distributed along the coast between southern Long Island, New York, and 
Florida (Hayes et al. 2018). Given their distribution, only the 
offshore stock is likely to occur in the Project Area and is the only 
stock included in Sunrise Wind's application.
    A detailed description of the species likely to be affected by the 
Project, including brief introductions to the species and relevant 
stocks as well as available information regarding population trends and 
threats, and information regarding local occurrence, were provided in 
the proposed rule (88 FR 8996, February 10, 2023). Since that time, a 
new draft SAR (Hayes et al., 2024) has become available for the NARW. 
Estimated abundance for the species declined from 368 to 340 and annual 
M/SI increased from 8.1 to 27.2. This large increase in annual serious 
injury/mortality is a result of NMFS including undetected annual M/SI 
in the total annual M/SI. The NARW population remains in decline, as 
described in the North Atlantic Right Whale species section below. NMFS 
is not aware of any additional changes in the status of the species and 
stocks listed in table 2; therefore, detailed descriptions are not 
provided here. Please refer to the proposed rule for these descriptions 
(88 FR 8996, February 10, 2023).
    Since the publication of the proposed rule, the following updates 
have occurred to the below species in regard to general information or 
their active UMEs.

North Atlantic Right Whale

    In August 2023, NMFS released its draft 2023 SARs, which updated 
the population estimate (Nbest) of NARW from 368 to 340 
individuals and the annual M/SI value from 8.1 to 37.2 due to the 
addition of estimated undetected mortality and serious injury, as 
described above, which had not been previously included in the SAR. The 
population estimate is equal to the North Atlantic Right Whale 
Consortium's 2022 Annual Report Card, which identifies the population 
estimate as 340 individuals (Pettis et al., 2023). Elevated NARW 
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 April 8, 2024, there have been 39 confirmed mortalities (i.e., 
dead, stranded, or floaters), 1 pending mortality, and 34 seriously 
injured free-swimming whales for a total of 74 whales. The UME also 
considers animals with sublethal injury or illness (i.e., 
``morbidity''; n=51) bringing the total number of whales in the UME 
from 71 to 122. More information about the NARW UME is available online 
at: https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.

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 
January 5, 2024). Of the whales examined (approximately 90), about 40 
percent had evidence of human interaction either from vessel strike or 
entanglement. While a portion of the whales have shown evidence of pre-
mortem vessel strike, this finding is not consistent across all whales 
examined and more research is needed. NOAA is consulting with 
researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
    Since December 1, 2022, the number of humpback strandings along the 
mid-Atlantic coast (from North Carolina to New York) 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 were 
reportedly close to shore in the 2022-2033 winter. Changing 
distributions of prey impact larger marine species that depend on them 
and result in changing distribution of whales and other marine life. 
These prey also attract fish that are targeted by recreational and 
commercial fishermen, which increases the number of boats and amount of 
fishing gear in these areas. This nearshore movement increases the 
potential for anthropogenic interactions, particularly as the increased 
presence of whales in areas traveled by boats of all sizes increases 
the risk of vessel strikes.

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 January 5, 2024, a total of 164 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/active-and-closed-unusual-mortality-events.

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 but has since closed. 
The UME Investigative Team reviewed necropsy, histopathology, and 
diagnostic findings.

[[Page 45317]]

They determined the UME was attributed to spillover events of the 
highly pathogenic avian influenza H5N1 virus from infected wild birds 
to harbor and gray seals. An ongoing HPAI H5N1 global outbreak in 
domestic and wild birds and wild mammals began in 2021. Live seals 
showed signs of respiratory and neurological disease including nasal 
and ocular discharge, coughing, unresponsiveness, and seizures. 
Eighteen percent of the stranded seals (33 out of 180) were tested for 
avian influenza via polymerase-chain-reaction. A subset of seals was 
positive for HPAI H5N1, with preliminary findings confirmed by the 
United States Department of Agriculture's National Veterinary Services 
Laboratories. Of the 33 seals tested during the UME period 19 (58 
percent) were positive for H5N1 (17 harbor seals; 2 gray seals) and 14 
(42 percent) tested negative. Twelve H5N1 positive seals had 
histopathology conducted and 11 of those seals had lesions (primarily 
respiratory and/or neurologic) suspected or consistent with avian 
influenza infection. Sequencing of the H5N1 virus detected in seals 
suggests the seals were infected from spillover events from infected 
wild birds to these seals. While the UME was not occurring in the 
Project Area, the populations affected by the UME were the same as 
those potentially affected by the Project. Information on this UME is 
available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 dB 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower bound was 
deemed to be biologically implausible and the lower bound from Southall 
et al. (2007) retained. Marine mammal hearing groups and their 
associated hearing ranges are provided in table 3.
[GRAPHIC] [TIFF OMITTED] TR22MY24.003

    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, it will be 
adopting the updated Southall et al. (2019a) hearing group 
classification.

Potential Effects of Specified Activities to 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 included 
a discussion of the effects of anthropogenic noise on marine mammals 
and the potential effects of underwater noise from the Project's 
specified activities on marine mammals and their habitat (88 FR 8996, 
February

[[Page 45318]]

10, 2023). While some new literature has been published since 
publication of the proposed rule (e.g., HDR, Inc., 2023, Holme et al., 
2023, Meyer-Gutbrod et al., 2023, Van Parijs et al. 2023, Davis et al. 
2023), there is no new information that NMFS is aware of that changes 
the analysis in the proposed rule. The information and analysis 
included in the proposed rule is referenced and used for this final 
rule and is not repeated here (88 FR 8996, February 10, 2023).
    However, some new papers, which NMFS considers part of the best 
available science, further informed, though not necessarily changed, 
its analysis and consideration of mitigation and monitoring measures 
(e.g., Crowe et al., 2023, Davis et al. 2023, Holdman et al., 2023, Van 
Parijs et al. 2023, Westwell et al., 2024). Crowe et al. (2023) 
research evaluated the use and importance of real-time data for 
detecting NARW. The shift in NARW habitat use motivated the integration 
of additional ways to detect the presence of NARW and passive acoustic 
detections of right whale vocalizations reported in near real-time 
became an increasingly important tool to supplement visual sightings. 
The proposed rule did include real-time and daily awareness measures 
and sighting communication protocols, and NMFS did evaluate these 
measures and added details for clarity or updated the reporting 
mechanisms, such as in the case of sighting an injured NARW.
    Davis et al. (2023) analyzed NARW individual upcalls from 2 years 
of acoustic recordings in southern New England which showed that NARW 
were detected at least one day every week throughout both years, with 
highest NARW presence from October to April. Within southern New 
England, on average NARW persisted for 10 days and recurred again 
within 11 days. An evaluation of the time period over which it is most 
effective to monitor prior to commencing pile driving activities showed 
that with 1 h of pre-construction monitoring there was only 4% 
likelihood of hearing a NARW, compared to 74% at 18 h. Therefore, 
monitoring for at least 24 h prior to activity will increase the 
likelihood of detecting an up-calling NARW. Holdamn et al. (2023) 
studied harbor porpoise habitats in the Gulf of Maine (GOM) and 
Southern New England waters providing baseline data on the occurrence 
and foraging activity of porpoises from 2020 to 2022. Harbor porpoises 
were present year-round in the GOM with peak detections in the summer 
and fall. The observed seasonal pattern of harbor porpoise occurrence 
in this study is consistent with prior information on the general 
distribution of the GOM/Bay of Fundy stock (Wingfield et al., 2017; 
NMFS, 2021). In line with previously reported distribution patterns, 
harbor porpoise occurrence in Southern New England was high in fall, 
winter, and spring, but porpoises were largely absent in the summer. 
Results from generalized additive models suggest that time of year, 
hour of day, lunar illumination, and temperature are significant 
contributors to harbor porpoise presence (detection mainly through 
echolocation clicks) and/or foraging effort.
    Van Parijs et al. (2023), provides 2 years of baseline data on 
cetacean species' presence, vessel activity, and ambient sound levels 
in the southern New England wind energy area. With eight species/
families present in the area for at least 9 months of the year, this 
area represents an important habitat for cetaceans. Most species showed 
seasonality, with peak daily presence in winter (harbor porpoise, North 
Atlantic right, fin, and humpback whales), summer (sperm whales), 
spring (sei whales), or spring and fall/autumn (minke whales). 
Delphinids were continuously present and blue whales present only in 
January. The NARW was present year-round with high presence in October 
through April. Westell et al. (2024) collected baseline data from 2020 
to 2022, with six passive acoustic recorders deployed in the vicinity 
of Nantucket Shoals and Cox's Ledge. Data were analyzed for sperm whale 
presence, and demographic composition was assessed using interclick 
intervals. Presence varied by site, season, and year. Sperm whales were 
detected year-round but the majority (78%) of days with acoustic 
occurrences were between May and August. Sound propagation tests were 
conducted at two sites and predicted detection ranges within 20-40 km 
indicate that sperm whales were likely in proximity to the WEA. These 
results provide a baseline for ongoing sperm whale presence, especially 
that of social groups which may be more sensitive to disturbance.
    Separately, since issuance of the proposed rule, a non-peer 
reviewed report on HRG survey noise has also been released (Rand et 
al., 2023). The measured data presented in Rand et al., (2023) are 
consistent with our evaluation of sound levels produced by HRG surveys 
(i.e., received sound levels at the ranges measured) and vessels and do 
not change our assessments of potential impacts. The analysis of those 
data in the Rand et al. (2023) report, however, includes methodological 
issues and therefore does not support all of their conclusions.
    Since the publication of the proposed rule, new scientific 
information has become available that provides additional insight into 
the sound fields produced by turbine operation (HDR, Inc., 2023; Holme 
et al., 2023). 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 (i.e., power 
production, which is proportional to the blade's revolutions per 
minute) and noise level. However, it was noted that this missing 
relationship may have been masked by the area's relatively high ambient 
noise sound levels. Sound levels (i.e., 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.
    In addition, operational turbine measurements from the Coastal 
Virginia Offshore Wind pilot pile project indicated that noise levels 
from two, 7.8 m monopiles WTGs were higher when compared to those of 
the Block Island wind farm, likely due to vibrations associated with 
the monopiles structure (HDR, Inc., 2023). NMFS notes that this updated 
information does not change our assessment for impacts of turbine 
operational sound on marine mammals. As described in the proposed rule, 
NMFS will require Sunrise Wind to measure operational noise levels, 
however, is not authorizing take incidental to operational noise from 
WTGs.
    In addition, recently, a National Academy of Sciences, Engineering, 
and Medicine (NASEM) panel of independent experts concluded that the 
impacts of offshore wind operations on NARW and their habitat in the 
Nantucket Shoals region (a key winter foraging habitat tens of 
kilometers to the east of the Project Area) are uncertain due to the 
limited data available at this

[[Page 45319]]

time and recognized what data is available is largely based on models 
from the North Sea that have not been validated by observations 
(National Academy of Sciences, 2023). The report also identifies that 
major oceanographic changes have occurred to the Nantucket Shoals 
region over the past 25 years, and it will be difficult to isolate from 
the much larger variability introduced by natural and other 
anthropogenic sources (e.g., climate change). This report is specific 
to the Nantucket Shoals region which is unlikely to be influenced by 
any long-term operational effects of the Sunrise Wind Project; however, 
the findings in the report align with those presented in the proposed 
rule. More recently, NMFS concluded ESA consultation on Federal actions 
associated with the Project, including NMFS' proposal to issue a 5-year 
LOA to Sunrise Wind and BOEM's approval of the Construction and 
Operation Plan (COP) which covers the 30 years of the Project's 
operation and subsequent decommissioning.
    Overall, new scientific information regarding the general 
anticipated effects of OSW construction and operations on marine 
mammals and their habitat support the findings in the proposed rule. 
The information and analysis regarding the potential effects on marine 
mammals and their habitat was included in the proposed rule and is not 
repeated here (88 FR 8996, February 10, 2023).

Estimated Take

    As noted in the Changes From the Proposed to Final Rule section, 
NMFS has revised the take estimates for several species based on 
updated information received from Sunrise Wind and its concurrence with 
comments received on the proposed rule. While distances to thresholds 
and estimated take have been updated, the underlying methodologies to 
calculate these values have not changed. This section provides an 
estimate of the number of incidental takes that may occur through this 
rulemaking, which informs both NMFS' 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, pneumatic hammering, site characterization surveys, and 
UXO/MEC detonations) have the potential to result in disruption of 
marine mammal behavioral patterns due to exposure to elevated noise 
levels. Impacts such as masking and TTS can contribute to behavioral 
disturbances. There is also some potential for auditory injury (Level A 
harassment) to occur in select marine mammal species incidental to the 
specified activities (i.e., impact pile driving, and UXO/MEC 
detonations). As described below, the larger distances to the PTS 
thresholds, when considering marine mammal weighting functions, 
demonstrate this potential. For mid-frequency hearing sensitivities, 
when thresholds and weighting and the associated PTS zone sizes are 
considered, the potential for PTS from the noise produced by the 
project is negligible. The required mitigation and monitoring measures 
are expected to minimize the severity of the taking to the extent 
practicable. As described previously, no serious injury or mortality is 
anticipated or authorized for this project.
    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 (as well as impulse metric 
(Pascal-second) pressure and peak sound pressure level thresholds above 
which marine mammals may incur non-auditory injury from underwater 
explosive detonations); (2) the area or volume of water that will be 
ensonified above these levels in a day; (3) the density or occurrence 
of marine mammals within these ensonified areas; and (4) the number of 
days of activities. NMFS notes 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, NMFS describes 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 
are likely to be behaviorally harassed (equated to Level B harassment) 
or to incur PTS of some degree (equated to Level A harassment). 
Thresholds have also been developed to identify the levels above which 
animals may incur different types of tissue damage (non-acoustic Level 
A harassment or mortality) from exposure to pressure waves from 
explosive detonation. A summary of all NMFS' thresholds can be found 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Level B harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., other noises in the area) and the 
receiving animals (e.g., animal hearing, motivation, experience, 
demography, life stage, depth) and can be difficult to predict (e.g., 
Southall et al., 2007, 2021; Ellison et al., 2012). Based on what the 
available science indicates and the practical need to use a threshold 
based on a metric that is both predictable and measurable for most 
activities, NMFS typically uses a generalized acoustic threshold based 
on received level to estimate the onset of behavioral harassment. NMFS 
generally predicts that marine mammals are likely to be behaviorally 
harassed in a manner considered to be Level B harassment when exposed 
to underwater anthropogenic noise above root-mean-squared pressure 
received levels (RMS SPL) of 120 dB (referenced to re 1 [mu]Pa) for 
continuous (e.g., vibratory pile driving, drilling) and above RMS SPL 
160 dB re 1 [mu]Pa for non-explosive impulsive (e.g., seismic airguns) 
or intermittent (e.g., scientific sonar) sources (table 4). Generally 
speaking, Level B harassment take estimates based on these behavioral 
harassment thresholds are expected to include any likely takes by TTS 
as, in most cases, the likelihood of TTS occurs at distances from the 
source less than those at which behavioral harassment is likely. TTS of 
a sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (e.g., conspecific communication, predators, prey) 
may result in changes in behavior patterns that would not otherwise 
occur.
    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 (i.e., 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

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largest isopleth). The Project includes the use of both impulsive and 
non-impulsive sources.
    These thresholds are provided in table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
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    Explosive sources--Based on the best available science, NMFS uses 
the acoustic and pressure thresholds indicated in tables 5 and 6 to 
predict the onset of behavioral harassment, TTS, PTS, tissue damage, 
and mortality incidental to explosive detonations. Given that Sunrise 
Wind would be limited to detonating one UXO/MEC per

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day, the TTS threshold is used to estimate the potential for Level B 
(behavioral) harassment (i.e., individuals exposed above the TTS 
threshold may also be harassed by behavioral disruption). However, NMFS 
does not anticipate that any impacts from exposure to UXO/MEC 
detonation below the TTS threshold would constitute behavioral 
harassment).
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    Additional thresholds for non-auditory injury to lung and 
gastrointestinal (GI) tracts from the blast shock wave and/or onset of 
high peak pressures are also relevant (at relatively close ranges) 
(table 6). These criteria have been developed by the U.S. Navy (DoN 
(U.S. Department of the Navy) 2017a) and are based on the mass of the 
animal and the depth at which it is present in the water column. 
Equations predicting the onset of the associated potential effects are 
included below (table 6).

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Marine Mammal Density and Occurrence

    In this section, NMFS provides the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Depending on the species and as described in the take 
estimation section for each activity, take estimates may be based on 
the Roberts et al. (2023) density estimates, marine mammal monitoring 
results from HRG surveys, or average group sizes.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory and the Marine-life Data and Analysis 
Team, based on the best available marine mammal data obtained in a 
collaboration between Duke University, the Northeast Regional Planning 
Body, the University of North Carolina Wilmington, the Virginia 
Aquarium and Marine Science Center, and NOAA (Roberts et al., 2016a, 
2016b, 2017, 2018, 2020, 2021a, 2021b, 2023), represent the best 
available information regarding marine mammal densities in the Project 
Area. Density data are subdivided into five separate raster data layers 
for each species: (1) Abundance (density); (2) 95 percent Confidence 
Interval of Abundance; (3) 5 percent Confidence Interval of Abundance; 
(4) Standard Error of Abundance; and (5) Coefficient of Variation of 
Abundance. The density estimates have not changed since the Proposed 
Rule.
    Below, NMFS describes the observational data from monitoring 
reports and average group size information, both of which are 
appropriate to inform take estimates for certain activities or species 
in lieu of density estimates. As noted above, the density and 
occurrence information type resulting in the highest take estimate was 
used, and the explanation and results for each activity are described 
in the specific activity sub-sections in the Modeling and Take 
Estimation section.
    For some species and activities, observational data from Protected 
Species Observers (PSOs) aboard HRG and geotechnical survey vessels 
indicate that the density-based exposure estimates may be insufficient 
to account for the number of individuals of a species that may be 
encountered during the planned activities. PSO data from geophysical 
and geotechnical surveys conducted in the area surrounding the Sunrise 
Wind Lease Area and SWEC route from October 2018 through February 2021 
(AIS-Inc., 2019; Bennett, 2021; Stevens et al., 2021; Stevens and 
Mills, 2021) were analyzed to determine the average number of 
individuals of each species observed per vessel day. For each species, 
the total number of individuals observed (including the ``proportion of 
unidentified individuals'') was divided by the number of vessel days 
during which observations were conducted in 2018-2021 HRG surveys 
(i.e., 407 survey days) to calculate the number of individuals observed 
per vessel day, as shown in the final columns of tables 7 and 8 as 
found in the Updated Density and Take Estimation Memo.
    For other less-common species, the predicted densities from Roberts 
and Halpin (2022) are very low and the resulting density-based exposure 
estimate is 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 or PSO data-based take estimates to 
account for potential impacts on a group during an activity. Mean group 
sizes for each species were calculated from recent aerial and/or 
vessel-based surveys, as shown in table 7. Additional detail regarding 
the density and occurrence as well as the methodology used to estimate 
take for

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specific activities is included in the activity-specific subsections 
below.
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    The estimated exposure and take tables for each activity present 
the density-based exposure estimates, PSO-data derived take estimate, 
and mean group size for each species. The number of takes by Level B 
harassment Sunrise Wind requested and NMFS authorizes is based on the 
largest of these three values. As mentioned previously, the number of 
takes by Level A harassment authorized is based strictly on density-
based exposure modeling results, rounded up to the nearest whole number 
or group size, as appropriate.

Modeling and Take Estimation

    Sunrise Wind estimated density-based exposures in two separate 
ways, depending on the activity. For Level A

[[Page 45325]]

and Level B harassment from the noise produced by foundation 
installation, sophisticated sound and animal movement modeling was 
conducted to account for the movement and behavior of marine mammals 
and their exposure to the underwater sound fields produced during 
impact pile driving, as described below. Sunrise Wind also estimated 
the potential for Level B harassment from foundation installation using 
a simplified ``static'' method wherein the take estimates are the 
product of density, ensonified area above the NMFS defined threshold 
levels (e.g., unweighted 160 dB SPLrms), and number of days of 
installation. Take estimates from landfall construction activities, HRG 
surveys, and UXOs/MECs detonations were also calculated based on the 
static method (i.e., animal movement modeling was not conducted for 
these activities). For some species, observational data from PSOs 
aboard HRG survey vessels or group size indicated that the density-
based take estimates may be insufficient to account for the number of 
individuals of a species that may be encountered during the planned 
activities; thus, adjustments were made to the density-based estimates. 
The ``static'' 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 (e.g., unweighted 160 dB SPLrms) by the total number of days 
each month. The number of days per month is dependent upon the 
construction schedules (see tables 1-5 in the March 2023 Reduced WTG 
Foundation Scenario Memo). The results of these calculations were then 
summed to arrive at the total estimated exposure from WTG and OCS-DC 
foundation installations. That is, Sunrise Wind assumed all 87 
foundations are installed in the months with the highest densities for 
each species. For foundation installation, the maximum monthly density 
is multiplied by the total ensonified area (highest between summer or 
winter) for the first month of construction of WTG monopile 
installation. The second highest monthly density is multiplied by the 
total ensonified area (highest between summer or winter) for the second 
month of WTG monopile installation. Lastly, the maximum monthly density 
is multiplied by the total ensonified area for OCS-DC installation. 
These three values are then added together to derive the ``static'' 
take estimate value for all foundation installation. Total ensonified 
area is calculated by multiplying the single pile ensonified area by 
the total number of piles installed within the first and second month 
of construction. For example, if 56 WTG monopiles were assumed to be 
installed during the month with the highest density (e.g., July) and 46 
were installed in the month with the second highest density (e.g., 
August), the resulting equation would be:
    Max monthly density [July] x total ensonified area for first month 
[summer WTG monopile] + 2nd highest monthly density [August] x total 
ensonified area for the 2nd month [summer WTG monopile] + max monthly 
density [July] x total ensonified area for first month [summer OCS-DC] 
= Total ``static'' take estimate.
    In some cases, the exposure estimates from the animal movement 
modeling methods described above directly informed the take estimates. 
In other cases, adjustments were made based on previously collected 
monitoring data or average group size as described above. In all cases, 
Sunrise Wind requested, and this final rule allows for, an amount of 
take to be authorized that is based on the highest amount of exposures 
estimated from any given method.
    Below, NMFS presents the distances to NMFS thresholds and take 
estimates associated with each activity (e.g., WTG and OCS-DC 
foundation installation) as a result of exposure modeling or the static 
method as described above.
    WTG and OCS-DC Foundation Installation--Here, for WTG and OCS-DC 
monopile foundation installation, NMFS provides summarized descriptions 
of the modeling methodology used to predict sound levels generated from 
the Project with respect to harassment thresholds and potential 
exposures using animal movement, the density and/or occurrence 
information used to support the take estimates for this activity, and 
the resulting acoustic and exposure ranges, exposures, and authorized 
takes. Additional modeling details are available in the proposed rule 
Federal Register notice (88 FR 8996, February 10, 2023).
    To complete the Project, Sunrise Wind proposed five total pile 
installation schedules, as construction schedules cannot be fully 
predicted due to uncontrollable environmental factors (e.g., weather) 
and installation schedules include variability (e.g., drivability). 
Table 8 describes the assumptions in each scenario with regard to how 
piles are installed relative to each other as well as the amount of 
pile driving time (days) allocated to each month.
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    Sunrise Wind assumed that a maximum of three (if installed 
sequentially) or four (if installed concurrently) WTG monopile 
foundations and four pin piles related to the jacket foundation for the 
OCS-DC

[[Page 45328]]

may be driven in 24 hours. It is unlikely that this installation rate 
would be consistently possible throughout the SRWF construction phase, 
but this schedule was considered to have the greatest potential for 
Level A harassment (i.e., PTS) and was, therefore, carried forward into 
the Level A harassment take estimation. Exposure ranges 
(ER95percent) to Level A SELcum thresholds resulting from 
animal exposure modeling assuming various consecutive pile installation 
scenarios and 10 dB of attenuation by a NAS are summarized in table 9. 
In the event two installation vessels are able to work simultaneously, 
exposure ranges (ER95percent) to Level A SELcum thresholds 
from the three concurrent pile installation scenarios and 10 dB of 
attenuation by a NAS are summarized in table 10. Comparison of the 
results in table 9 and table 10 show that the scenario assuming 
consecutive installation of 2 WTG monopiles per day (which assumes the 
piles are located close to each other) and concurrent installation of 4 
WTG monopiles per day at distant locations yield very similar results. 
This makes logical sense because the close proximity of the two piles 
installed at each location in the concurrent scenario is very similar 
to the 2 piles installed in the consecutive installation scenario and 
animals are unlikely to occur in both locations in the concurrent 
scenarios when they are far apart. Exposure ranges from the 
``Proximal'' concurrent installation scenario (assuming close distances 
between concurrent pile installations) are slightly greater than from 
the ``Distal'' concurrent installation scenario (assuming long 
distances between concurrent pile installations) reflecting the fact 
that animals may be exposed to slightly higher cumulative sound levels 
when concurrent pile installations occur close to each other.
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    As described previously, Sunrise Wind also modeled acoustic ranges 
to NMFS harassment thresholds. Because the Level B harassment threshold 
is instantaneous, NMFS considers the acoustic ranges most appropriate 
to identify areas at which PSOs would determine if a Level B harassment 
take has occurred, although NMFS notes the differences between the 
Level B harassment exposure ranges calculated assuming animal movement 
modeling and Level B acoustic ranges are negligible. Table 11 presents 
the acoustic ranges resulting from JASCO's source and propagation 
models.
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    Sunrise Wind modeled potential Level A harassment and Level B 
harassment density-based exposure estimates for all five foundation 
installation schedules: consecutive pile driving (Schedules 1 and 2) 
and

[[Page 45330]]

concurrent pile driving (Schedules 3, 4, and 5). For both WTG monopile 
and OCS-DC jacket foundation installation, mean monthly densities for 
all species were calculated by first selecting density data from 5 x 5 
km (3.1 x 3.1 mile) grid cells (Roberts et al., 2016; Roberts et al., 
2022) both within the Lease Area and out to 10 km (6.2 mi) from the 
perimeter of the Lease Area. This is a reduction from the 50 km (31 mi) 
perimeter used in the Adequate & Complete ITR application from May 
2022. The relatively large area selected for density estimation 
encompasses and extends approximately to the largest estimated exposure 
acoustic range (ER95percent to the isopleth corresponding to 
Level B harassment, assuming 10 dB of noise attenuation) for all 
hearing groups using the unweighted threshold of 160 dB re 1 [mu]Pa 
(rms). Please see figure 11 in Sunrise Wind's Updated Density and Take 
Estimation Memo for an example of a density map showing the Roberts et 
al. (2022) density grid cells overlaid on a map of the SRWF.
    For monopile installation, the exposure calculations assume 30 days 
of piling would occur in the highest density month and that the 
remaining piling days would occur in the second highest density month 
for each marine mammal species (excluding January-April). Sunrise Wind 
assumed that the OCS-DC jacket foundation would be installed in the 
month with the highest density for each species. Due to differences in 
the seasonal migration and occurrence patterns, the month selected for 
each species differs. Table 12 identifies the months and density values 
used in the exposure estimate models for foundation installation.
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    For some species, modifications to the densities used were 
necessary, and these are described here. The estimated monthly density 
of seals provided in Roberts et al. (2022) includes all seal species 
present in the region as a single guild. To split the resulting 
``seal'' density-based exposure estimate by species (harbor and gray 
seals), the estimate was multiplied by the proportion of the combined 
abundance attributable to each species. Specifically, the SAR 
Nbest abundance estimates (Hayes et al., 2021) for the two 
species (i.e., gray seal = 27,300, harbor seal = 61,336; total = 
88,636) were added and divided the total by the estimate for each 
species to get the proportion of the total for each species (i.e., gray 
seal = 0.308; harbor seal = 0.692). The total estimated exposure from 
the pooled seal density provided by Roberts and Halpin (2022) was then 
multiplied by these proportions to get the species-specific exposure 
estimates. Monthly densities were unavailable for pilot whales, so the 
annual mean density was used instead. The blue whale density was 
considered too low to be carried into exposure estimation so the amount 
of blue whale take that Sunrise Wind requests (see Estimated Take) is 
instead based on group size.
    The winter acoustic modeling results were used to calculate the 
ensonified area in cases where the first or second highest monthly 
density was December (when considering May through December given the 
seasonal restriction on pile driving). All species expected in the SRWF 
and SRWEC have the highest and second highest monthly densities 
occurring in summer months except for the NARW, harbor porpoise, common 
dolphin, and harbor seal. During foundation installation activities, 
the NARW, harbor seal, and harbor porpoise densities are highest during 
May and second highest during the month of December. Common dolphin 
densities are highest during the month of September and second highest 
during December. The resulting take estimate for the two highest months 
was then summed together with the OCS-DC take estimate to get the total 
``Static'' Level B take for each scenario. These calculations were used 
for all five scenarios and the highest Level B ``Static'' exposure 
estimate from across the five installation scenarios was selected for 
the final take tables (tables 50 and 51 in the Reduced WTG Foundations 
report and its correction).
    No single schedule resulted in the greatest amount of potential for 
injury or behavioral harassment. Sunrise Wind identified the following 
trends when looking across all construction schedules. Schedules 3 and 
4 resulted in the highest take estimate due to the fact that the total 
ensonified area was distributed only into a single month of effort 
rather than across two months, meaning that all activity would occur 
within the month with the highest density for each species. This is 
likely because marine mammals would be exposed to two sources at the 
same moment and as one event rather than by two separate and distinct 
construction events. There were no SEL injury exposures at any 
attenuation level for any construction schedule. Harbor porpoise Level 
A harassment exposures were consistent regardless of the construction 
schedule. Schedule 3 tended to result in a reduced amount of take 
compared to the other construction schedules for phocid pinnipeds. 
Schedule 5 has similar results to Schedule 1.
    As several of these schedules assume nearby concurrent operations, 
modeling efforts found that, because of the SEL metric used to evaluate 
PTS and the greater energy accumulated from multiple sources over a 
larger footprint, concurrent nearby operations may marginally increase 
the total number of injurious takes of marine mammals by PTS (Level A 
harassment) even though the number of days of operations goes down in 
these situations. Alternately, while the footprint ensonified above the 
behavioral harassment threshold by two concurrent installations may be 
larger than that of a single operation, because the behavioral 
harassment threshold is based on SPL and not accumulated energy, the 
number of behavioral disruptions of marine mammals (Level B harassment) 
are reduced when the number of days of pile driving is reduced. The 
fact that concurrent operations will likely result in the construction 
activities being completed in a shorter amount of time (fewer days), 
this is also considered a benefit, and more broadly, in the context of 
how repeated or longer total duration activities may impact marine 
mammals and their habitat.
    As described above, no single schedule was carried forward 
specifically for annual take estimates. Sunrise Wind compiled the 
maximum amount of take modeled for each species from each construction 
schedule to consider in their take estimates. Moreover, as described 
above, other factors influenced Sunrise Wind's take request. However, 
NMFS notes that final take estimates and the number of takes that NMFS 
may authorize represent the maximum number of takes that is reasonably 
likely to occur from any method considered (e.g., exposure modeling, 
static Level B harassment calculations (i.e., density x ensonified area 
x days of pile driving), PSO data, or group size). Tables 13 and 14 
represent take estimates from all methods for consecutive and 
concurrent pile driving schedules.
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    Table 15 presents the maximum number of exposures among all five 
schedules modeled (see K[uuml]sel et al. 2022 for exposure estimates 
for each schedule), results from a static approach to calculate Level B 
harassment take, other available data to consider (i.e., mean group 
size and PSO data), and importantly, the number of takes Sunrise Wind 
requested and NMFS may authorize incidental to installing WTG and OCS-
DC foundations. NMFS notes that in its application, Sunrise Wind 
requested take by Level A harassment for humpback whales only. However, 
the new Roberts and Halpin (2022) density estimates resulted in Level A 
harassment takes for other marine mammal species' (i.e., fin whale, 
humpback whale, minke whale, sei whale, harbor porpoise, gray seal, 
harbor seal) during foundation installation, which led to a 
reevaluation of how Level A harassment takes were determined during the 
foundation installation associated with the Sunrise Wind proposed 
project. As it is possible for some animals to occur within the 
relevant distances for durations long enough to result in Level A 
harassment, additional take was evaluated and requested. However, most 
species will temporarily avoid the area during the foundation 
installation activities, and in combination with the mitigation and 
monitoring measures, 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. To estimate 
the potential for PTS, Sunrise Wind conservatively estimated that some 
animals may be undetected at distance but within the Level A harassment 
exposure ranges. Assuming the greatest risk to not detecting marine 
mammals is within the outer 500 m of the exposure range (or 
approximately 20 percent of exposure range area), Sunrise Wind 
estimates that up to 20 percent of the model-predicted Level A 
harassment take (except NARW) could occur. Given the extensive visual 
and acoustic monitoring required for all marine mammals, NMFS believes 
animals will be reliably detected to the degree that PTS can be 
avoided; however, at Sunrise Wind's request, this rule would allow for 
take, by Level A harassment, to be authorized in the amount of 20 
percent of the modeled PTS exposures for each species. However, due to 
the enhanced mitigation measures for NARW (see Mitigation section), no 
Level A harassment takes are requested for this species nor is NMFS 
allowed to authorize any such takes under this rulemaking.
    Sunrise Wind assumed that all foundations would be installed in a 
single year and calculated take based on this schedule. However, the 
new schedule predicts foundation installation may occur over two years. 
Regardless, Sunrise Wind's conservative approaches (e.g., assuming all 
piles would be installed within the two highest density months for each 
species) indicate the assumption all piles would be installed in one 
year is reasonable. Further, it is possible the schedule could shift 
again. It is anticipated that all foundations would be installed in 
Year 1; therefore, table 15 represents the maximum number of takes that 
is reasonably expected to occur in any given year from foundation 
installation.
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BILLING CODE 3510-22-C

Export Cable Landfall Construction

    NMFS previously described Sunrise Wind's acoustic modeling 
methodologies and identified that Sunrise Wind applied the static 
method to estimate take (i.e., no exposure modeling was conducted for 
cable landfall construction work). Here, NMFS presents the results from 
that modeling. Table 16 identifies the modeled acoustic ranges to the 
PTS (SELcum) thresholds from pneumatic hammering of the 
casing pipe. Level A harassment (SPLpk) thresholds were not 
exceeded in the model and, therefore, will not be discussed further. 
The modeled Level B harassment threshold distance is 920 m (table 16).
    Modeled distances to PTS thresholds are larger than distances to 
the Level B harassment threshold due to the high strike rate of the 
pneumatic hammer (table 16). However, low-frequency cetaceans are not 
expected to occur frequently close to this nearshore site and 
individuals of any species (including seals) are not expected to remain 
within the estimated SELcum threshold distances for the 
entire 3-hour duration of piling in a day. Furthermore, with the 
implementation of planned monitoring and mitigation (see Mitigation and 
Monitoring section), the potential for PTS incidental to pneumatic 
hammering is not anticipated. Sunrise Wind did not request nor is NMFS 
authorizing Level A harassment incidental to installation of the casing 
pipe.
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    Each casing pipe would be supported by six goal posts to allow the 
borehole exit point to remain clear of mud. Each goal post would be 
supported by two vertical sheet piles (a total of 12 sheet piles) that 
would be installed using a vibratory hammer (i.e., an American 
Piledriving Equipment model 300 or similar), with a potential for up to 
10 additional sheet piles being installed to support ongoing 
construction activities (a total of 22 sheet piles). Sunrise Wind 
anticipates installing the 22 sheet piles over 6 days (approximately 
four piles per day). Each sheet pile would take up to 2 hours to 
install for a total of 8 hours per day. Removal timelines would be 
similar (up to six days total), equating to a total of 12 days for both 
installation and removal.
    Similar to the modeling approach for foundation impact pile 
driving, distances to harassment thresholds are reported as 
R95percent values. Given the nature of vibratory pile 
driving and the very small distances to Level A harassment thresholds 
(i.e., 0-190 m) (table 17), which accounts for eight hours of vibratory 
pile driving per day, vibratory driving is not expected to result in 
Level A harassment. Sunrise Wind did not request, nor is NMFS 
authorizing, any Level A harassment incidental to installation or 
removal of sheet piles.

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[GRAPHIC] [TIFF OMITTED] TR22MY24.020

    The acoustic ranges to the Level B harassment threshold were used 
to calculate the ensonified area around the cable landfall construction 
site. The Ensonified Area is calculated as the following:

Ensonified Area = pi x r\2\,

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

    Based on the duration of both the installation/removal of the sheet 
piles and the casing pipe, different daily ensonified values are 
necessary for this calculation for the cable landfall take analysis. 
For the vibratory pile driving associated with the sheet pile 
installation and removal, the calculated daily ensonified area was 149 
km\2\ (57.53 mi\2\) or a total ensonified area of 1,788 km\2\ (1,111 
mi\2\). For impact pile driving associated with the casing pipe by the 
pneumatic hammer, the calculated daily ensonified area was 0.92 km\2\ 
(0.36 mi\2\) with a total ensonified area of 10.6 km\2\ (6.58 mi\2\) to 
result.
    To estimate marine mammal density around the nearshore landfall 
site, the greatest ensonified area plus a 10-km buffer was then 
intersected with the density grid cells for each individual species to 
select all of those grid cells that the buffer intersects (Figure 10 in 
Sunrise Wind's Updated Density and Take Estimation Memo). Since the 
timing of landfall construction activities may vary somewhat from the 
proposed schedule, the highest average monthly density from January 
through December for each species was selected and used to estimate 
exposures from landfall construction (table 18).
    For some species where little density information is available 
(i.e., blue whales, pilot whales), the annual density was used instead. 
Given overlap with the pinniped density models as the Roberts and 
Halpin (2022) dataset does not distinguish between species, a 
collective ``pinniped'' density was used and then split based on the 
relative abundance for each species for the estimated take (Roberts et 
al., 2016). These approaches were the same as described in the WTG and 
OCS-DC Foundation Installation section.
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[GRAPHIC] [TIFF OMITTED] TR22MY24.021

    To calculate exposures, the average marine mammal densities (table 
18) were multiplied by the daily ensonified area (149 km\2\) for 
installation/removal of sheet piles and for the installation/removal of 
the casing pipe (0.92 km\2\). Given that use of the vibratory hammer 
during sheet pile installation and removal may occur on up to 12 days, 
the daily estimated take (which is the product of density x ensonified 
area) was multiplied by 12 to produce the results shown in table 19. 
The same approach was undertaken for the use of the pneumatic hammer 
for the casing pipe with the exception that the 8 total days was used.
    To be conservative, Sunrise Wind has requested take by Level B 
harassment based on the highest exposures predicted by the density-
based, PSO based, or average group size-based estimates, and the take 
to be authorized is indicated in the last column of table 19. As 
described above, given the small distances to Level A harassment 
isopleths, Level A harassment incidental to this activity is not 
anticipated, even absent mitigation, although mitigation measures are 
required that would further reduce the risk. Therefore, Sunrise Wind is 
not requesting and NMFS is not authorizing Level A harassment related 
to cable landfall construction activities.

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UXO/MEC Detonation

    Sunrise Wind may detonate up to three UXO/MECs within the Project's 
Lease Area over the 5-year effective period of the final rule. To 
assess the impacts from UXO/MEC detonations, JASCO conducted acoustic 
modeling based on previous underwater acoustic assessment work that was 
performed jointly between NMFS and the United States Navy. JASCO 
evaluated the effects thresholds for TTS, PTS, non-auditory injury, and 
mortality based on the following three appropriate metrics: (1) peak 
sound pressure level; (2) weighted cumulative SEL; and (3) acoustic 
impulse. Charge weights of 2.3 kg (5.1 pounds (lbs)), 9.1 kg (20.1 
lbs), 45.5 kg (100.3 lbs), 227 kg (500 lbs), and 454 kg (1,000.9 lbs) 
(which is the largest charge the Navy considers for the purposes of its 
analyses) (see the Description of the Specified Activities section in 
the proposed rule), were modeled to determine the ranges to mortality, 
gastrointestinal injury, lung injury, PTS, and TTS thresholds. These 
charge weights were modeled at four different locations and associated 
water depths in the Project Area (12 m (Site S1), 20 m (Site S2), 30 m 
(Site S3), and 45 m (Site S4)). Sites S3 (30 m depth) and S4 (45 m 
depth) were deemed to be representative of the Sunrise Wind Lease Area 
where detonations could occur (see figure 1 in Hannay and Zykov, 2022).
    Here, NMFS presents the distances to PTS and TTS thresholds for all 
UXO/MEC charge weights (tables 20 and 21). In the proposed rule, NMFS 
only described the distances to thresholds for the largest E12 charge 
weight. However, Sunrise Wind will be able to identify and mitigate at 
the relevant distances for each specific charge weight, so NMFS has 
incorporated the maximum values for each size herein. As described 
below, in consideration of the distances to the associated thresholds 
and the implementation of the required mitigation and monitoring 
measures, Sunrise Wind did not request, and NMFS does not anticipate 
and is not authorizing, take by mortality or non-auditory injury from 
any activity. All modeling results, including mortality and non-
auditory injury, can be found in the supplementary report for Sunrise 
Wind's ITA application titled ``Underwater Acoustic Modeling of 
Detonations of Unexploded Ordnance (UXO) for [Oslash]rsted Wind Farm 
Construction, US East Coast'' (UXO/MEC acoustic modeling report; Hannay 
and Zykov, 2022). Information on UXO/MEC detonation risk evaluation and 
charge weight identification can be found in the supplementary report 
``Supplementary Unexploded Ordnance (UXO) Information for [Oslash]rsted 
Wind Farm Construction, US East Coast'' (UXO/MEC Charge Weight report), 
as found on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
    JASCO selected the largest distances to the PTS and TTS isopleths 
modeled for the project area (S3 and S4) to carry forward for take 
estimation (Hannay and Zykov, 2022). This same approach was used to 
determine the largest distances to these isopleths for the Lease Area 
(tables 46 and 48 in ITA application). For all species, the distance to 
the SEL threshold isopleth exceeded that for the SPL peak isopleth (see 
section 9 in Hannay and Zykov, 2022). Sunrise Wind has committed to use 
a noise abatement system capable of 10-dB attenuation (at minimum a 
double bubble curtain) during all detonations. As a result, the 10 dB 
mitigated UXO/MEC scenario is the one carried forward into exposure and 
take estimation here. Additional information can be found in the UXO/
MEC modeling report (Hannay and Zykov, 2022)) and the Updated Density 
and Take Estimation Memo for Sunrise Wind on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
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BILLING CODE 3510-22-C
    More detailed results for the mortality and non-auditory injury 
analysis for marine mammals for onset gastrointestinal injury, onset 
lung

[[Page 45343]]

injury, and onset of mortality can be found in the supplementary report 
for Sunrise Wind's ITA application titled ``UXO/MEC acoustic modeling 
report (Hannay and Zykov, 2022),'' as found on NMFS' website at: 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
    NMFS concurs with Sunrise Wind's analysis, and neither expects nor 
authorizes any non-auditory injury, serious injury, or mortality of 
marine mammals from UXO/MEC detonation. The modeled distances to the 
mortality threshold for all UXO/MECs sizes for all animal masses are 
small enough that they can be effectively monitored (i.e., 5-353 m; see 
tables 35-38 in Hannay and Zykov, 2022) and these types of impacts 
avoided, given the robust mitigation and monitoring measures required. 
The modeled distances to gastrointestinal and lung injuries (i.e., non-
auditory injury) thresholds range from 5-648 m (see tables 30-34 in 
Hannay and Zykov, 2022). Sunrise Wind will be required to conduct 
extensive monitoring using both PSOs and PAM operators and clear an 
area of marine mammals prior to detonating any UXO/MEC. Given that 
Sunrise Wind will be employing multiple platforms to visually monitor 
marine mammals as well as conducting passive acoustic monitoring, it is 
reasonable to conclude that marine mammals will be reliably detected 
within approximately 660 m of the UXO/MEC being detonated and mortality 
or non-auditory injury is not likely to occur.
    Sunrise Wind did not request, and NMFS is not authorizing, take by 
mortality or non-auditory injury. For this reason, NMFS is not 
presenting all modeling results here; however, they can be found in 
Sunrise Wind's UXO/MEC acoustic modeling report (Hannay and Zykov, 
2022).
    To estimate the maximum ensonified zones that could result from 
UXO/MEC detonations, the largest acoustic range (R95percent; 
assuming 10dB attenuation) to PTS and TTS thresholds of a E12 UXO/MEC 
charge weight were used as radii to calculate the area of a circle (pi 
x r\2\; where r is the range to the threshold level) for each marine 
mammal hearing group. The results represent the largest area 
potentially ensonified above threshold levels from a single detonation 
within the SRWEC. The same method was used to calculate the maximum 
ensonified area from a single detonation in the Lease Area, based on 
the distances in tables 46 and 47 in the ITA application. Again, 
acoustic and exposure modeling results are presented here for mitigated 
(i.e., assuming 10 dB and including seasonal restrictions) detonations 
of UXO/MECs.
    Regarding the marine mammal density and occurrence data used in the 
take estimates for UXO/MECs, to avoid any in situ detonations of UXO/
MECs during periods when NARW densities are highest in and near the 
SWEC corridor and Lease Area, this rule includes a seasonal temporal 
restriction on detonation of UXO/MECs in Federal waters from December 1 
through April 30, annually. Accordingly, for each species, the highest 
average monthly marine mammal density between May and November from 
Roberts et al., 2023 was used to conservatively estimate exposures from 
UXO/MEC detonation for a given species in any given year (i.e., assumed 
all three UXO/MECs would be detonated in the month with the greatest 
average monthly density). Furthermore, given that UXO/MECs detonations 
have the potential to occur anywhere within the Lease Area, a 10 km 
(6.21 mi) perimeter was applied around the Lease Area. In some cases 
where monthly densities were unavailable, annual densities were used 
instead for some species (i.e., blue whales, pilot whale spp.). Table 
22 provides those densities and the associated months in which the 
species-specific densities are highest for the Sunrise Wind Lease Area 
(table 41 in the December 2022 Updated Density and Take Estimation Memo 
for Sunrise Wind).

[[Page 45344]]

[GRAPHIC] [TIFF OMITTED] TR22MY24.025

    To estimate take incidental to UXO/MEC detonations in Sunrise 
Wind's Lease Area, the maximum ensonified areas based on the largest 
R95percent to Level A harassment (PTS) and Level B 
harassment (TTS) thresholds (assuming 10 dB attenuation) from a single 
detonation (assuming the largest UXO/MEC charge weight) in the Lease 
Area, as shown in tables 20 and 21 and xx, were multiplied by three 
(the maximum number of UXOs/MECs that are expected to be detonated in 
the Sunrise Wind Lease Area) and then multiplied by the marine mammal 
densities shown in table 22, resulting in the take estimates in table 
23. As described above, Sunrise Wind based the number of requested 
takes on the number of exposures estimated assuming 10 dB attenuation 
using a NAS, and NMFS agrees the distances to thresholds (which are 
considered in the take estimate) based on this assumption are 
reasonable.
    The likelihood of marine mammal exposures above the PTS threshold 
is low, especially considering the instantaneous nature of the acoustic 
signal and the fact that there will be no more than three. Further, the 
rule includes required mitigation and monitoring measures intended to 
avoid the potential for PTS for most marine mammal species and the 
extent and severity of Level B harassment (see Mitigation and 
Monitoring and Reporting sections below). However, given the relatively 
large distances to the high-frequency cetacean Level A harassment (PTS, 
SELcum) isopleth applicable to harbor porpoises and the 
difficulty detecting this species at sea, Sunrise Wind is requesting, 
and NMFS is authorizing, 19 Level A harassment takes of harbor porpoise 
from UXO/MEC detonations. Similarly, seals are difficult to detect at 
longer ranges, and although the distance to the phocid hearing group 
SEL PTS threshold is not as large as those for high-frequency 
cetaceans, it may not be possible to detect all seals within the PTS 
threshold distances even with the required monitoring measures. 
Therefore, Sunrise Wind is requesting, and NMFS would authorize under 
this rule, take by Level A harassment of 2 gray seals and 3 harbor 
seals incidental to UXO/MEC detonation.
    While there would be no more than 3 detonations of UXO/MECs, each 
of which would be of very short duration (approximately 1 second), UXO/
MEC detonations have a higher potential to cause mortality and injury 
than other Project activities and therefore, have specific mitigation 
measures designed to prevent mortality and/or injury of marine mammals, 
including: (1) time of

[[Page 45345]]

year/seasonal restrictions; (2) time of day restrictions; (3) use of 
PSOs to visually observe for NARW; (4) use of PAM to acoustically 
detect NARW; (5) implementation of clearance zones; (6) use of noise 
mitigation technology; and (7) post-detonation monitoring visual and 
acoustic monitoring by PSOs and PAM operators.
    The mitigation measures Sunrise Wind must implement during any UXO/
MEC detonations are expected to reduce the likelihood of Level A 
harassment (PTS) and, to a degree, Level B harassment, to the extent 
practicable. However, as described above, there remains potential for 
Level A harassment (PTS) for multiple species.
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BILLING CODE 3510-22-C

HRG Surveys

    Sunrise Wind's HRG survey activity includes the use of impulsive 
(i.e., boomers and sparkers) and non-impulsive (e.g., CHIRP SBPs) 
sources (table 24).

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[GRAPHIC] [TIFF OMITTED] TR22MY24.028

    Authorized takes would be by Level B harassment 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. Therefore, the 
potential for Level A harassment from HRG surveys is not evaluated 
further in this document. Sunrise Wind did not request, and NMFS is not 
authorizing, take by Level A harassment incidental to HRG surveys. 
Please see Sunrise Wind's application for details of a quantitative 
exposure analysis (i.e., calculated distances to Level A harassment 
isopleths and Level A harassment exposures).
    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. Sunrise Wind used 
NMFS' methodology with additional modifications to incorporate a 
seawater absorption formula and account for energy emitted outside of 
the primary beam of the source. For sources that operate with different 
beamwidths, the maximum beam width was used, and the lowest frequency 
of the source was used when calculating the frequency-dependent 
absorption coefficient.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best scientific information available 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. Sunrise Wind 
utilized the following criteria for selecting the appropriate inputs 
into the NMFS User Spreadsheet Tool (NMFS, 2018):
    For equipment that was measured in Crocker and Fratantonio (2016), 
the reported SL for the most likely operational parameters was 
selected. For equipment not measured in Crocker and Fratantonio (2016), 
the best available manufacturer specifications were selected. Use of 
manufacturer specifications represent the absolute maximum output of 
any source and do not adequately represent the operational source. 
Therefore, they should be considered an overestimate of the sound 
propagation range for that equipment. For equipment that was not 
measured in Crocker and Fratantonio (2016) and did not have sufficient 
manufacturer information, the closest proxy source measured in Crocker 
and Fratantonio (2016) was used.
    The Dura-spark measurements and specifications provided in Crocker 
and Fratantonio (2016) were used for all sparker systems proposed for 
the HRG surveys. These included variants of the Dura-spark sparker 
system and various configurations of the GeoMarine Geo-Source sparker 
system. The data provided in Crocker and Fratantonio (2016) represent 
the most applicable data for similar sparker systems with comparable 
operating methods and settings when manufacturer or other reliable 
measurements are not available. Crocker and Fratantonio (2016) provide 
S-Boom measurements using two different power sources (CSP-D700 and 
CSP-N). The CSP-D700 power source was used in the 700 joules (J) 
measurements but not in the 1,000 J measurements. The CSP-N source was 
measured for both 700 J and 1,000 J operations but resulted in a lower 
source level; therefore, the single maximum source level value was used

[[Page 45349]]

for both operational levels of the S-Boom.
    Table 25 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.
[GRAPHIC] [TIFF OMITTED] TR22MY24.029

    Results of modeling using the methodology described above indicated 
that, of the HRG equipment planned for use by Sunrise Wind that has the 
potential to result in Level B harassment of marine mammals, sound 
produced by the Applied Acoustics sparkers and Applied Acoustics 
triple-plate S-Boom would propagate furthest to the Level B harassment 
isopleth (141 m; table 26). For the purposes of take estimation, it was 
conservatively assumed that sparkers and/or boomers 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 for and the boomer and sparkers 
(141 m) was 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.

[[Page 45350]]

[GRAPHIC] [TIFF OMITTED] TR22MY24.030

    To estimate densities for the HRG surveys occurring both within the 
Lease Area and within the SWEC based on Roberts and Halpin (2022), a 5-
km (3.11 mi) perimeter was applied around each area (see Figures 11 and 
12 of the Updated Density and Take Estimation Memo for Sunrise Wind) 
using GIS (ESRI, 2017). Given that HRG surveys could occur at any point 
year-round, the annual average density for each species was calculated 
using average monthly densities from January through December (table 
27).

[[Page 45351]]

[GRAPHIC] [TIFF OMITTED] TR22MY24.031

    The maximum range (i.e., 141 m) to the Level B harassment threshold 
and the estimated trackline distance traveled per day by a given survey 
vessel (i.e., 70 km) were then used to calculate the daily ensonified 
area or zone of influence (ZOI) around the survey vessel.
    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:

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

    Where r is the linear distance from the source to the harassment 
isopleth.
    The largest daily ZOI (19.8 km\2\ (7.64 mi\2\)), associated with 
the proposed use of boomers, was applied to all planned survey days.
    At the time of the proposed rule, the Project previously assumed 
12,604 km of HRG surveys to occur within the SRWF. Based on the reduced 
number of WTG foundations, as described in the March 2023 Sunrise Wind 
ITR Application--Reduced WTG Foundations report, 10,940.3 km of HRG 
surveys are now expected to occur within the Lease Area (previously 
12,604 km). Potential Level B density-based harassment exposures are 
estimated by multiplying the average annual 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 2-year construction timeframe (i.e., 156.3 days in 
the SWEC corridor and 180 days in the Lease Area), and the product was 
rounded to the nearest whole number. This assumed a total ensonified 
area of 3,094.9 km\2\ (1,194.95 mi\2\) in the Lease Area and 3,380 
km\2\ (1,305.03 mi\2\) along the SWEC corridor. Given that the HRG 
surveys are anticipated to occur over 2 years of construction 
activities, the total survey effort and associated ensonified areas 
were split equally across 2 years. These results can be found in table 
28.
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[[Page 45353]]


[GRAPHIC] [TIFF OMITTED] TR22MY24.033

    As mentioned previously, HRG surveys would also routinely be 
carried out during the period of time following construction of Sunrise 
Wind's Lease Area and SWEC corridor, which, for the purposes of 
exposure modeling, Sunrise

[[Page 45354]]

Wind assumed to be three years. Generally, Sunrise followed the same 
approach as described above for HRG surveys occurring during the two 
years of construction activities with the only modification during the 
three-year operations years being a difference in the survey effort. 
During the three years of operations, Sunrise Wind estimates that HRG 
surveys would cover 2,471.4 km (1,535.66 mi) within the Lease Area and 
3,413 km (2,120.74 mi) along the SWEC corridor annually. Maintaining 
that 70 km (43.5 mi) are surveyed per day, this amounts to 35.3 days of 
survey activity in the Lease Area and 48.8 days of survey activity 
along the SWEC corridor each year (an annual ensonified area of 699.1 
km\2\; 269.9 mi\2\). The amount of HRG survey work was reduced from the 
proposed rule given the number of foundations has been reduced. Over 
the three years of operations that would occur during the five-year 
period covered by this rulemaking, the total ensonified area in the 
SRWF would be 2,097.4 km\2\ (809.8 mi\2\).
    Density-based take estimates were derived by multiplying the daily 
ZOI by the annual average densities and separately by the number of 
survey days planned for the SWEC and Sunrise Wind Lease Area. Using the 
same approach described above, Sunrise Wind estimated a conservative 
amount of annual take by Level B harassment based on the highest 
exposures predicted by the density-based, PSO based, or average group 
size-based estimates. The highest predicted exposure value was 
multiplied by three to yield the amount of take Sunrise Wind requested 
and that is to be authorized, as shown in table 29 below.

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BILLING CODE 3510-22-C

Total Authorized Take Across All Activities

    The number of Level A harassment and Level B harassment takes NMFS 
allows to be authorized under this rulemaking incidental to all project 
activities combined during the impact pile driving of monopile and OCS-
DC

[[Page 45356]]

foundations; pneumatic hammering casing pipe; vibratory pile driving 
for sheet pile and goal post installation and removal; HRG surveys; and 
potential UXO/MEC detonations are provided by year in table 30. NMFS 
also presents the 5-year total number of takes for each species in 
table 31. Table 31 additionally depicts the number of takes relative to 
each stock assuming that each individual is taken only once, which 
specifically informs the small numbers determination.
    Table 30 shows the annual take for authorization, given that 
specific activities are expected to occur within specific years. 
Sunrise Wind is currently planning for all construction activities 
related to permanent structures (i.e., WTG foundations, OCS-DC 
foundation installation, cable landfall structures) to occur within the 
first year of the project. As a conservative assumption, the Year 1 
take includes the installation of all WTGs and OCS-DC foundations, 
cable landfall construction, one year of HRG surveys, and up to three 
high-order detonations of UXOs/MECs. All activities are expected to be 
completed in 2029, equating to the 5 years of activities as described 
in this preamble.
    To inform the negligible impact analysis, NMFS assesses the 
greatest number of takes of marine mammals allowable within any given 
year (which, in the case of this rule, is based on the predicted Year 1 
for all species), as well as the total allowable take across all five 
years of the rule.
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BILLING CODE 3510-22-C
    In making the negligible impact determination, NMFS assesses both 
the maximum annual total number of takes (Level A harassment and Level 
B harassment) of each marine mammal species or stocks in any one year, 
which in the case of this rule is in Year 1, and the total taking of 
each marine mammal species or stock allowed during the five-year 
effective period of the rule. NMFS recognizes 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 30 in any one year.

Mitigation

    As noted in the Changes From the Proposed to Final Rule section, 
NMFS has added several new mitigation requirements and clarified a few 
others. Specifically, as described in greater detail below, NMFS has 
increased the updated clearance zones (table 32), designated the PAM 
clearance zone and PAM shutdown zones for NARW as ``Any Distance'' 
clarified that if species other than NARW are able to be detected 
within the 10km PAM monitoring zone, they should be (e.g., use humpback 
detectors as well as NARW detectors). Additionally, NMFS has clarified 
that the shutdown and clearance zones in table 32 apply to both visual 
and auditory detection, and these changes are described in detail in 
the sections below. Other than the changes described, the required 
mitigation measures remain the same as those described in the proposed 
rule. NMFS has also re-organized and simplified this section of the 
preamble to avoid full duplication of the specific requirements that 
are fully described in the regulatory text.
    In order to promulgate a rulemaking under section 101(a)(5)(A) of 
the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable adverse impact on the species or stock and its habitat, 
paying particular attention to 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

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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 (e.g., likelihood, scope, range) of the 
potential adverse impact being mitigated. 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 (i.e., probability 
of implementation as planned); and,
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous incidental take 
authorizations issued in association with in-water construction 
activities (e.g., soft-start, establishing shutdown zones). NMFS has 
also specifically considered information gathered from the marine 
mammal and acoustic monitoring, including SFVs, conducted pursuant to 
those authorizations. 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: temporal (seasonal and daily) work 
restrictions, real-time measures (shutdown, clearance, and vessel 
strike avoidance), and noise attenuation/reduction measures. Seasonal 
work restrictions are designed to avoid or minimize operations when 
marine mammals are concentrated or engaged in behaviors that make them 
more susceptible or make impacts more likely, in order to reduce both 
the number and severity of potential takes and are effective in 
reducing both chronic (longer-term) and acute effects. Real-time 
measures, such as implementation of shutdown and clearance zones, as 
well as vessel strike avoidance measures, are intended to reduce the 
probability or severity of harassment by taking steps in real time once 
a higher-risk scenario is identified (e.g., once animals are detected 
within an impact zone). Noise attenuation measures, such as bubble 
curtains, are intended to reduce the noise at the source, which reduces 
both acute impacts, as well as the contribution to aggregate and 
cumulative noise that may result in longer-term chronic impacts.
    Below, NMFS briefly describes the required training, coordination, 
and vessel strike avoidance measures that apply to all specified 
activities and then in the following subsections and the measures that 
apply specifically to foundation installation, nearshore installation, 
and removal activities for cable laying, HRG surveys, and UXO/MEC 
detonation. Details on specific requirements can be found in Part 217--
Regulations Governing The Taking And Importing Of Marine Mammals at the 
end of this rulemaking.

Training and Coordination

    NMFS requires all Project 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 Sunrise Wind's 
compliance with the LOA, if issued. Additionally, all relevant 
personnel and the marine mammal species monitoring team(s) are required 
to participate in joint, onboard briefings prior to the beginning of 
project activities. The briefing must be repeated whenever new relevant 
personnel (e.g., new PSOs, construction contractors, relevant crew) 
join the project before work commences. During this training, Sunrise 
Wind is required to instruct all project personnel regarding the 
authority of the marine mammal monitoring team(s). For example, the HRG 
acoustic equipment operator, pile driving personnel, etc., is required 
to immediately comply with any call for a delay or shut down by the 
Lead PSO. Any disagreement between the Lead PSO and the project 
personnel must only be discussed after delay or shutdown has occurred. 
In particular, all vessel operators 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. Sunrise Wind will provide 
documentation of training to NMFS.

North Atlantic Right Whale Awareness Monitoring

    Sunrise Wind must use available sources of information on NARW 
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 NARW by understanding NARW presence in the area 
through ongoing visual and passive acoustic monitoring efforts and 
opportunities (outside of Sunrise Wind's efforts), and allows for 
planning of construction activities, when practicable, to minimize 
potential impacts on NARW.

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, such strikes 
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 Project personnel sight a marine

[[Page 45361]]

mammal. The mitigation requirements are described generally here and in 
detail in Sec.  217.314(b) of the regulation text at the end of this 
final rule. Sunrise Wind must comply with the following vessel strike 
avoidance measures unless it's unsafe to do so.
    While a vessel is underway, Sunrise Wind is required to monitor for 
and maintain a minimum separation distance from marine mammals and 
operate vessels in a manner that reduces the potential for vessel 
strike. Regardless of the vessel's size, all vessel operators, crews, 
and dedicated visual observers (i.e., PSO or trained crew member) must 
maintain a vigilant watch for all marine mammals and slow down, stop 
their vessel, or alter course (as appropriate) to avoid striking any 
marine mammal. The dedicated visual observer, equipped with suitable 
monitoring technology (e.g., binoculars, night vision devices), must be 
located at an appropriate vantage point for ensuring vessels are 
maintaining required vessel separation distances from marine mammals 
(e.g., 500 m from NARW).
    All project vessels, regardless of size, must maintain the 
following minimum separation zones: 500 m from NARW; 100 m from sperm 
whales and non-NARW baleen whales; and 50 m from all delphinid 
cetaceans and pinnipeds (an exception is made for those species that 
approach the vessel (i.e., bow-riding dolphins)). If any of these 
species are sighted within their respective minimum separation zone, 
the underway vessel must shift its engine to neutral and the engines 
must not be engaged until the animal(s) have been observed to be 
outside of the vessel's path and beyond the respective minimum 
separation zone. If a NARW is observed at any distance by any project 
personnel or acoustically detected, project vessels must reduce speeds 
to 10 kn. Additionally, in the event that any project-related vessel, 
regardless of size, observes any large whale (other than a NARW) within 
500 m of an underway vessel, the vessel is required to shift engines 
into neutral. The vessel shall remain in neutral until the NARW has 
moved beyond 500 m and the 10 kn speed restriction will remain in 
effect as outlined in Sec.  217.314(b) in the regulatory text below.
    All of the Project-related vessels are required to comply with the 
measures within this rulemaking for operating vessels around NARW and 
other marine mammals, as well as existing NMFS vessel speed and 
approach regulations for NARW and the measures within this rulemaking 
for operating vessels around NARW 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, Sunrise Wind is required to monitor the crew transfer vessel 
transit corridor (i.e., 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 NARW 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 NARW 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 Sunrise Wind must report all Maritime Mobile Service Identify 
(MMSI) numbers to NMFS Office of Protected Resources prior to 
initiating in-water activities. Sunrise Wind must submit a NMFS-
approved Marine Mammal Vessel Strike Avoidance Plan at least 180 days 
prior to commencement of vessel use.
    Compliance with these measures will reduce the likelihood of vessel 
strike to the extent practicable. These measures increase awareness of 
marine mammals in the vicinity of project vessels and require project 
vessels to reduce speed when marine mammals are detected by PSOs, PAM, 
and/or through another source (e.g., RWSAS) and maintain separation 
distances when marine mammals are encountered. While visual monitoring 
is useful, reducing vessel speed is one of the most effective, feasible 
options available to reduce the likelihood of, and effects from, a 
vessel strike. Numerous studies have indicated that slowing the speed 
of vessels reduces the risk of lethal vessel collisions, particularly 
in areas where right whales are abundant and vessel traffic is common 
and otherwise traveling at high speeds (Vanderlaan and Taggart, 2007; 
Conn and Silber, 2013; Van der Hoop et al., 2014; Martin et al., 2015; 
Crum et al., 2019).

Seasonal and Daily Restrictions

    Temporal and spatial restrictions in places where marine mammals 
are concentrated, engaged in biologically important behaviors, and/or 
present in sensitive life stages are effective measures for reducing 
the magnitude and severity of human impacts. The restrictions required 
here are built around NARW protection. Based upon the best scientific 
information available (Roberts et al., 2023), the highest densities of 
NARW in the specified geographic region are expected during the months 
of January through April with an increase in density starting in 
December and continuing through May. However, NARW may be present in 
the specified geographic region throughout the year.
    NMFS is requiring seasonal work restrictions to minimize the risk 
of noise exposure to NARW incidental to certain specified activities to 
the extent practicable. These seasonal work restrictions are expected 
to greatly reduce the number of takes of NARW. These seasonal 
restrictions also afford protection to other marine mammals that are 
known to use the Project Area with greater frequency during winter 
months, including other baleen whales.
    As described previously, no foundation impact pile driving 
activities may occur January 1 through April 30. A new measure included 
in this final rule requires that Sunrise Wind avoid pile driving to the 
maximum extent practicable in December (i.e., it must not be planned 
but may have to occur in the case of unforeseen circumstances) and, it 
may only occur if necessary to complete the project within any given 
year with prior approval by NMFS. Sunrise Wind must notify NMFS in 
writing by September 1 of that year that circumstances are expected to 
necessitate pile driving in December. NMFS is not requiring any 
seasonal restrictions for cable landfall work due to the relatively 
short duration of work, nearshore location, and low associated impacts 
to marine mammals. However, all cable landfall work must be conducted 
during daylight hours when marine mammals can be visually detected. 
Similarly, there are no time of year restrictions for the temporary 
pier or Smith Point County Park pile driving activities, but the work 
must be conducted during daylight hours when the entire Level B 
harassment zones are visible to ensure no take of marine mammals from 
the activities.
    There is no specific time of year that UXOs/MECs would be detonated 
as detonations would be considered on a case-by-case basis. However, 
Sunrise Wind will be restricted from detonating UXO/MECs November 1 
through April 30 to reduce impacts to NARW during peak migratory 
periods. NMFS is not adding seasonal restrictions to HRG surveys; 
however, Sunrise Wind would only perform a predetermined amount of 24-
hour survey days within specific years, as previously described.
    NMFS is also requiring temporal and spatial restrictions for some 
other

[[Page 45362]]

specified activities. Within a day, Sunrise Wind would be limited to 
installing no more than four monopile foundations. Sunrise Wind had 
requested to initiate pile driving during nighttime when detection of 
marine mammals is visually challenging. Since the publication of the 
proposed rule, Sunrise Wind has continued conversations with NMFS and 
BOEM regarding field trials it has been performing to prove the 
efficacy of their nighttime monitoring methods and systems. These field 
trials have provided information and evidence that their systems are 
capable of detecting marine mammals, particularly large whales, at 
distances necessary to ensure that the required mitigation measures are 
effective. NMFS is requiring Sunrise Wind to submit and obtain approval 
on a Nighttime Pile Driving Plan before any piling may be initiated at 
night. NMFS also continues to encourage Sunrise Wind to further 
investigate and test advanced technology detection systems. Any and all 
vibratory pile driving associated with sheet piles and goal posts 
installation and removal would only occur during daylight hours. Any 
UXO/MEC detonations will also be limited to daylight hours only. 
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

    Sunrise Wind is required to employ noise abatement systems (NAS), 
also known as noise attenuation systems, during all foundation 
installation (i.e., impact pile driving) and UXO/MEC detonation 
activities to reduce the sound pressure levels that are transmitted 
through the water in an effort to reduce ranges to acoustic thresholds 
and minimize, to the extent practicable, any acoustic impacts resulting 
from these activities. Sunrise Wind proposed, and is required to use, a 
double big bubble curtain and AdBm Helmholz resonator, as well as the 
adjustment of operational protocols to minimize noise levels. For UXO/
MEC detonation, a double big bubble curtain must be used and the hoses 
must be placed at distances to avoid damage to the bubble curtain 
during detonation. Should the research and development phase of newer 
systems demonstrate effectiveness, as part of adaptive management, 
Sunrise Wind may submit data on the effectiveness of these systems and 
request approval from NMFS to use them during foundation installation 
and UXO/MEC detonation activities.
    Two categories of NAS exist: primary and secondary. A primary NAS 
would be used to reduce the level of noise produced by foundation 
installation activities at the source, typically through adjustments on 
to the equipment (e.g., hammer strike parameters). Primary NAS are 
still evolving and will be considered for use during mitigation efforts 
when the NAS has been demonstrated as effective in commercial projects. 
However, as primary NAS are not fully effective at eliminating noise, a 
secondary NAS would be employed. The secondary NAS is a device or group 
of devices that would reduce noise as it was transmitted through the 
water away from the pile, typically through a physical barrier that 
would reflect or absorb sound waves and, therefore, reduce the distance 
the higher energy sound propagates through the water column. Together, 
these systems must reduce noise levels to those not exceeding modeled 
ranges to Level A harassment and Level B harassment isopleths 
corresponding to those modeled assuming 10-dB sound attenuation, 
pending results of SFV (see Sound Field Verification section below and 
Part 217--Regulations Governing The Taking And Importing Of Marine 
Mammals).
    Noise abatement systems, such as bubble curtains, are used to 
decrease the sound levels radiated from a source. Bubbles create a 
local impedance change that acts as a barrier to sound transmission. 
The size of the bubbles determines their effective frequency band, with 
larger bubbles needed for lower frequencies. There are a variety of 
bubble curtain systems, confined or unconfined bubbles, and some with 
encapsulated bubbles or panels. Attenuation levels also vary by type of 
system, frequency band, and location. Small bubble curtains have been 
measured to reduce sound levels, but effective attenuation is highly 
dependent on depth of water, current, and configuration and operation 
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann, 
2013). Bubble curtains vary in terms of the sizes of the bubbles and 
those with larger bubbles tend to perform a bit better and more 
reliably, particularly when deployed with two separate rings (Bellmann, 
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016). 
Encapsulated bubble systems (i.e., Hydro Sound Dampers (HSDs)), can be 
effective within their targeted frequency ranges (e.g., 100-800 Hz), 
and when used in conjunction with a bubble curtain appear to create the 
greatest attenuation. The literature presents a wide array of observed 
attenuation results for bubble curtains. The variability in attenuation 
levels is the result of variation in design as well as differences in 
site conditions and difficulty in properly installing and operating in-
water attenuation devices.
    The literature presents a wide array of observed attenuation 
results for bubble curtains. The variability in attenuation levels is 
the result of variation in design as well as differences in site 
conditions and difficulty in properly installing and operating in-water 
attenuation devices. D[auml]hne et al. (2017) found that single bubble 
curtains that reduce sound levels by 7 to 10 dB reduced the overall 
sound level by approximately 12 dB when combined as a double bubble 
curtain for 6-m steel monopiles in the North Sea. During installation 
of monopiles (consisting of approximately 8-m in diameter) for more 
than 150 WTGs in comparable water depths (> 25 m) and conditions in 
Europe indicate that attenuation of 10 dB is readily achieved 
(Bellmann, 2019; Bellmann et al., 2020) using single BBCs for noise 
attenuation. When a double big bubble curtain is used (noting a single 
bubble curtain is not allowed), Sunrise Wind is required to maintain 
numerous operational performance standards. These standards are defined 
in the regulatory text at the end of this rulemaking, and include, but 
are not limited to, construction contractors' requirement to train 
personnel in the proper balancing of airflow to the bubble ring and 
Sunrise Wind mandatory submission of a performance test and maintenance 
reports to NMFS. Corrections to the attenuation device to meet 
regulatory requirements must occur prior to use during foundation 
installation activities and UXO/MEC detonation. In addition, a full 
maintenance check (e.g., manually clearing holes) must occur prior to 
each pile being installed or any UXO/MEC detonated.
    Sunrise Wind is required to submit an SFV plan to NMFS for approval 
at least 180 days prior to installing foundations or detonating UXO/
MECs. It is 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

[[Page 45363]]

should they be misaligned with anticipated noise levels within our 
analysis.
    Noise abatement devices are not required during HRG surveys, 
cofferdam (sheet pile) installation and removal, and goal post (pipe 
pile) installation and removal. Regarding cofferdam sheet pile and goal 
post pipe pile installation and removal, NAS is not practicable to 
implement due to the physical nature of linear sheet piles and angled 
pipe piles, and is of low risk for impacts to marine mammals due to the 
short work duration and lower noise levels produced during the 
activities. Regarding HRG surveys, NAS cannot practicably be employed 
around a moving survey ship, but Sunrise Wind is required to make 
efforts to minimize source levels by using the lowest energy settings 
on equipment that has the potential to result in harassment of marine 
mammals (e.g., sparkers, boomers) and turn off equipment when not 
actively surveying. Overall, minimizing the amount and duration of 
noise in the ocean from any of the project's activities through use of 
all means necessary and practicable will effect the least practicable 
adverse impact on marine mammals.

Clearance and Shutdown Zones

    NMFS requires the establishment of both clearance and, where 
technically feasible, shutdown zones during project activities that 
have the potential to result in harassment of marine mammals. The 
purpose of ``clearance'' of a particular zone is to minimize potential 
instances of auditory injury and more severe behavioral disturbances by 
delaying the commencement of an activity if marine mammals are near the 
activity. The purpose of a shutdown is to prevent a specific acute 
impact, such as auditory injury or severe behavioral disturbance of 
sensitive species, by halting the activity.
    All relevant clearance and shutdown zones during project activities 
would be monitored by NMFS-approved PSOs and/or PAM operators (as 
described in the regulatory text at the end of this rulemaking). At 
least one PAM operator must review data from at least 24 hours prior to 
foundation installation or any UXO/MEC detonations (based on new 
information in Davis et al. (2023) and must actively monitor 
hydrophones for 60 minutes prior to commencement of these activities. 
Any sighting or acoustic detection of a NARW triggers a delay to 
commencing pile driving and shutdown.
    Prior to the start of certain specified activities (i.e., 
foundation installation, casing pipe, goal post, and sheet pile install 
and removal, HRG surveys, UXO/MEC detonations), Sunrise Wind must 
ensure designated areas (i.e., clearance zones (tables 32-36)) are 
clear of marine mammals prior to commencing activities to minimize the 
potential for, and degree of, harassment. For foundation installation 
and UXO/MEC detonation, PSOs must visually monitor clearance zones for 
marine mammals for a minimum of 60 minutes, where the zone must be 
confirmed free of marine mammals at least 30 minutes directly prior to 
commencing these activities. Clearance zones represent the largest 
Level A harassment zone for each species group, rounded up for PSO 
clarity, and are based upon the longest range to threshold for the 
construction scenario (i.e., sequential or concurrent).
    For monopile foundation installation, the minimum visibility zone 
would extend 2,700 to 3,500 m from the pile during summer months, 
depending on construction scenario, and 3,000 to 4,000 m during 
December, depending on construction scenario (table 32). For OCS-DC 
foundation installation, the minimum visibility zone would extend 3,700 
m from the pile during summer months and 4,100 m during December (table 
32). These values correspond to the modeled maximum ER95% 
distances to the Level A harassment threshold for low-frequency 
cetaceans, assuming 10 dB of attenuation.
    For cofferdam and goal post pile driving and HRG surveys, 
monitoring must be conducted for 30 minutes prior to initiating 
activities and the clearance zones must be free of marine mammals 
during that time.
    For any other in-water construction heavy machinery activities 
(e.g., trenching, cable laying, etc.), if a marine mammal is on a path 
towards or comes within 10 m (32.8 ft) of equipment, Sunrise Wind is 
required to cease operations until the marine mammal has moved more 
than 10 m on a path away from the activity to avoid direct interaction 
with equipment.
    Once an activity begins, any marine mammal entering their 
respective shutdown zone would trigger the activity to cease. In the 
case of pile driving, the shutdown requirement may be waived if is not 
practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals or the lead engineer determines there is 
pile refusal or pile instability. Because UXO/MEC detonations are 
instantaneous, no shutdown is possible; therefore, there are clearance 
zones but no shutdown zones for UXO/MEC detonations (table 34). In 
situations when shutdown is called for during impact pile driving but 
Sunrise Wind determines shutdown is not practicable due to 
aforementioned emergency reasons, reduced hammer energy must be 
implemented when the lead engineer determines it is practicable. 
Specifically, pile refusal or pile instability could result in not 
being able to shut down pile driving immediately. Pile refusal occurs 
when the pile driving sensors indicate the pile is approaching refusal, 
and a shut-down would lead to a stuck pile which then poses an imminent 
risk of injury or loss 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. Sunrise Wind must document and report to 
NMFS all cases where the emergency exemption is taken.
    After shutdown, impact pile driving may be reinitiated once all 
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, at which 
time the lowest hammer energy must be used to maintain stability. If 
pile driving has been shut down due to the presence of a NARW, pile 
driving must not restart until the NARW 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 groups. 
Sunrise Wind is allowed to request modification to these zone sizes 
pending results of sound field verification (see regulatory text at the 
end of this rulemaking). Any changes to zone size would be part of 
adaptive management and would require NMFS' approval.
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BILLING CODE 3510-22-C
    In the proposed rule, NMFS presented zone sizes based solely on the 
largest charge weight due to uncertainty on how accurately these charge 
weights

[[Page 45367]]

could be identified in the water. Since the proposed rule, Sunrise Wind 
has reliably demonstrated that it can identify charge weights in the 
field to allow for charge weight-specific mitigative zones. Because of 
this, Sunrise Wind is required to implement the As Low as Reasonably 
Practicable (ALARP) process, as described in the UXO/MEC Charge Weight 
Memo. This process requires Sunrise Wind to undertake ``lift-and-
shift'' (i.e., physical removal) and then lead up to in situ disposal, 
as necessary, which could include low-order (deflagration) to high-
order (detonation) methods of removal. Another approach involves the 
cutting of the UXO/MEC to extract any explosive components. 
Implementing the ALARP approach would minimize potential impacts to 
marine mammals as UXOs/MECs would only be detonated as a last resort. 
Sunrise Wind will follow a Risk Management Framework designed to align 
with the ALARP principle which includes historical research/hazard 
profiling, communication with all relevant State and Federal Agencies, 
and the standards within their removal plan (see the UXO/MEC Charge 
Weight Memo). Sunrise Wind has demonstrated it will be able to identify 
charge weights in the field. Furthermore, NMFS believes that this 
approach will ensure the least practicable adverse impact on marine 
mammals by mitigating the potential for TTS for each charge weight. The 
UXO/MEC Charge Weight Memo is found on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
    Following this charge weight-specific approach, Sunrise Wind is 
required to clear the relevant zones as described in table 34. These 
zones are based on, but are not equal to, the greatest TTS threshold 
distances for each charge weight at any modeled site. NMFS notes that 
harbor porpoises and seals are difficult to detect at great distances 
but, due to the UXO/MEC detonation time of year restrictions, their 
abundance is likely to be relatively low. These zone sizes may be 
adjusted based on SFV and confirmation of the UXO/MEC or donor charge 
sizes after approval by NMFS.
    No minimum visibility zone is required for UXO/MEC detonation as 
the entire visual clearance zone must be clear given the potential for 
lung and gastrointestinal tract injury.

[[Page 45368]]

[GRAPHIC] [TIFF OMITTED] TR22MY24.041

    For HRG surveys, the Level B harassment zone and mitigation zone 
sizes remain the same as that included in the proposed rule (table 35).

[[Page 45369]]

[GRAPHIC] [TIFF OMITTED] TR22MY24.042

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. Sunrise Wind must 
utilize a soft-start protocol for all impact pile driving. For 
foundation installation, NMFS notes that it is difficult to specify a 
reduction in energy for any given hammer because of variation across 
drivers and installation conditions. The final methodology will be 
developed by Sunrise Wind considering final design details including 
site-specific soil properties and other considerations. HRG survey 
operators are also required to ramp-up sources when the acoustic 
sources are used unless the equipment operates on a binary on/off 
switch. Given the instantaneous nature of UXO/MEC detonations, no ramp-
up/soft-start protocol is possible; therefore, it is not 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.
    Should Sunrise Wind use an ASV for HRG survey operations, the ASV 
must be within 800 m (2,625 ft) of the primary vessel while conducting 
survey operations. Two PSOs would be stationed aboard the mother vessel 
at the best vantage points to monitor the clearance and shutdown zones 
around the ASV. A dual thermal/high definition camera would be 
installed on the mother vessel, facing forward and angled in a 
direction to provide a field of view ahead of the vessel and around the 
ASV. PSOs would monitor the real-time camera output on hand-held 
tablets. A monitor would also be installed on the bridge, displaying 
the real-time image from the thermal/HD camera installed on the ASV 
itself, providing an additional forward field of view from the ASV. 
Night-vision goggles with thermal clip-ons, and a hand-held spotlight 
would be used to monitor the ASV during survey operations during 
periods of reduced visibility (e.g., darkness, rain, fog).

Fishery Monitoring Surveys

    While the likelihood of Sunrise Wind's fishery monitoring surveys 
impacting marine mammals is minimal, NMFS requires Sunrise Wind to 
adhere to gear and vessel mitigation measures to reduce potential 
impacts to the extent practicable. In addition, all crew undertaking 
the fishery monitoring survey activities are required to receive 
protected species identification training prior to activities occurring 
and attend the aforementioned onboarding training. The specific 
requirements that NMFS has set for the fishery monitoring surveys can 
be found in the regulatory text at the end of this rulemaking.

Smith Point County Park Temporary Pier Construction

    To avoid take of marine mammals, Sunrise Wind would delay or 
shutdown pile driving if a marine mammal is observed entering or within 
the Level B harassment zones identified in table 36 (i.e., the Level B 
harassment zone equates to the clearance and shutdown zones). At least 
one PSO must be on duty 30 minutes prior to, during and 30 minutes 
after pile driving to implement this mitigation.

[[Page 45370]]

[GRAPHIC] [TIFF OMITTED] TR22MY24.043

    Based on an 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, 
NMFS has added, modified, and 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 Project Area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
    1. Occurrence of marine mammal species or stocks in the area in 
which take is anticipated (e.g., presence, abundance, distribution, 
density);
    2. 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);
    3. Individual marine mammal responses (behavioral or physiological) 
to acoustic stressors (acute, chronic, or cumulative), other stressors, 
or cumulative impacts from multiple stressors;
    4. How anticipated responses to stressors impact either: (1) long-
term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    5. Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
    6. 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, pneumatic hammering, UXO/MEC 
detonations, and HRG surveys. PAM would also be conducted during impact 
pile driving and UXO/MEC detonations. Visual observations and acoustic 
detections would be used to support the activity-specific mitigation 
measures (e.g., clearance zones). To increase understanding of the 
impacts of the activity on marine mammals, PSOs must record all 
incidents of marine mammal occurrence at any distance from the piling 
locations, near the HRG acoustic sources, and during UXO/MEC 
detonations. PSOs would document all behaviors and behavioral changes, 
in concert with distance from an acoustic source. Further, SFV during 
foundation installation and UXO/MEC detonation is required to ensure 
compliance and that the potential impacts are within the bounds of that 
analyzed. The required monitoring, including PSO and PAM Operator 
qualifications, is described below, beginning with PSO measures that 
are applicable to all the aforementioned activities and PAM (for 
specific activities).

Protected Species Observer and PAM Operator Requirements

    Sunrise Wind is required to employ NMFS-approved PSOs and PAM 
operators. PSOs are trained professionals who are tasked with visually 
monitoring for marine mammals during pile driving, UXO/MEC detonation, 
and HRG surveys. The primary purpose of a PSO is to carry out the 
monitoring, collect data, and, when appropriate, call for the 
implementation of mitigation measures. In addition to visual 
observations, NMFS requires Sunrise Wind to conduct PAM by PAM 
operators during impact pile driving, UXO/MEC detonations, and vessel 
transit.
    The inclusion of PAM, which would be conducted by NMFS-approved PAM 
operators, following a standardized measurement, processing methods, 
reporting metrics, and metadata standards for offshore wind, combined 
with visual data collection, is a valuable way to provide the most 
accurate record of species presence as possible and, together, these 
two monitoring methods

[[Page 45371]]

are well understood to provide best results when combined together 
(e.g., Barlow and Taylor, 2005; Clark et al., 2010; Gerrodette et al., 
2011; Van Parijs et al., 2021). Acoustic monitoring (in addition to 
visual monitoring) increases the likelihood of detecting marine mammals 
within the shutdown and clearance zones of project activities, which, 
when applied in combination with required shutdowns, helps to further 
reduce the risk of marine mammals being exposed to sound levels that 
could otherwise result in acoustic injury or more intense behavioral 
harassment. The exact configuration and number of PAM systems depends 
on the size of the zone(s) being monitored, the amount of noise 
expected in the area, and the characteristics of the signals being 
monitored.
    NMFS does not formally administer any PSO or PAM operator training 
program or endorse specific providers but will approve PSOs and PAM 
operators that have successfully completed courses that meet the 
curriculum and trainer requirements referenced below and further 
specified in the regulatory text at the end of this rulemaking.
    NMFS will provide PSO and PAM operator approvals in the context of 
the need to ensure that PSOs and PAM operators have the necessary 
training and/or experience to carry out their duties competently. In 
order for PSOs and PAM operators to be approved, NMFS must review and 
approve PSO and PAM operator resumes indicating successful completion 
of an acceptable training course. PSOs and PAM operators must have 
previous experience observing marine mammals and must have the ability 
to work with all required and relevant software and equipment. NMFS may 
approve PSOs and PAM operators as conditional or unconditional. A 
conditional approval may be given to one who is trained but has not yet 
attained the requisite experience. An unconditional approval is given 
to one who is trained and has attained the necessary experience. The 
specific requirements for conditional and unconditional approval can be 
found in the regulatory text at the end of this rulemaking.
    Conditionally-approved PSOs and PAM operators would be paired with 
an unconditional-approved PSO (or PAM operator, as appropriate) to 
ensure that the quality of marine mammal observations and data 
recording is kept consistent. Additionally, activities requiring PSO 
and/or PAM operator monitoring must have a lead on duty. The visual PSO 
field team, in conjunction with the PAM team (i.e., marine mammal 
monitoring team), would have a lead member (designated as the ``Lead 
PSO'' or ``Lead PAM operator'') who would be required to meet the 
unconditional approval standard.
    Although PSOs and PAM operators must be approved by NMFS, third-
party observer providers and/or companies seeking PSO and PAM operator 
staffing should expect that those having satisfactorily completed 
acceptable training and with the requisite experience (if required) 
will be quickly approved. Sunrise Wind is required to request PSO and 
PAM operator approvals 60 days prior to those personnel commencing 
work. An initial list of previously approved PSO and PAM operators must 
be submitted by Sunrise Wind at least 30 days prior to the start of the 
Project. Should Sunrise Wind require additional PSOs or PAM operators 
throughout the Project, Sunrise Wind must submit a subsequent list of 
pre-approved PSOs and PAM operators to NMFS at least 15 days prior to 
planned use of that PSO or PAM operator. A PSO may be trained and/or 
experienced as both a PSO and PAM operator and may perform either duty, 
pursuant to scheduling requirements (and vice versa).
    A minimum number of PSOs would be required to actively observe for 
the presence of marine mammals during certain project activities with, 
generally speaking, more PSOs required as the mitigation zone sizes 
increase. A minimum number of PAM operators would be required to 
actively monitor for the presence of marine mammals during foundation 
installation and UXO/MEC detonation. The types of equipment required 
(e.g., big eyes on the pile driving vessel) are also designed to 
increase marine mammal detection capabilities. In summary, at least 
three PSOs and one PAM operator per acoustic data stream (equivalent to 
the number of acoustic buoys) must be on-duty and actively monitoring 
per platform during foundation installation and any UXO/MEC detonation 
event; at least two PSOs must be on duty during cable landfall 
construction vibratory pile installation and removal and pneumatic 
hammering; 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.
    Sunrise Wind is required to submit a Pile Driving and UXO/MEC 
Marine Mammal Monitoring Plan and a PAM Plan to NMFS 180 days in 
advance of foundation installation activities. The Plan must include 
details regarding PSO and PAM monitoring protocols and equipment 
proposed for 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 or UXO/MEC detonation commencing. Specific details on NMFS' 
PSO or PAM operator qualifications and requirements can be found in 
Part 217--Regulations Governing The Taking And Importing Of Marine 
Mammals at the end of this rulemaking. Additional information can be 
found in Sunrise Wind's Protected Species Mitigation and Monitoring 
Plan (PSMMP) on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.

Sound Field Verification

    Sunrise Wind must conduct SFV measurements during all UXO/MEC 
detonations and all foundation installation. At minimum, the first 
three monopile foundations and all pin piles for the OCS-DC must be 
monitored with complete SFV. SFV measurements must continue until at 
least three consecutive piles demonstrate distances to thresholds are 
at or below those modeled (assuming 10 dB of attenuation). Subsequent 
complete SFV measurements are also required should larger piles be 
installed or additional piles be driven that are anticipated to

[[Page 45372]]

produce longer distances to harassment isopleths than those previously 
measured (e.g., higher hammer energy, greater number of strikes, etc.). 
The required reporting metrics associated with complete SFV can be 
found in the regulatory text at the end of this rule. The requirements 
are extensive to ensure monitoring is conducted appropriately and the 
reporting frequency is such that Sunrise Wind is required to make 
adjustments quickly (e.g., ensure bubble curtain hose maintenance, 
check bubble curtain air pressure supply, add additional sound 
attenuation, etc.) to ensure marine mammals are not experiencing noise 
levels above those considered in this analysis. For recommended SFV 
protocols for impact pile driving, please consult ISO 18406 Underwater 
acoustics--Measurement of radiated underwater sound from percussive 
pile driving (2017). Sunrise Wind must conduct abbreviated SFV on all 
piles for which complete SFV is not conducted. The reporting 
requirements and frequency of reporting can be found in the regulatory 
text below. Sunrise Wind must also conduct SFV during operations to 
better understand the sound fields and potential impacts on marine 
mammals associated with turbine operations.
    As described in the proposed rule, in addition to the 
aforementioned monitoring requirements, Sunrise Wind plans to conduct a 
long-term ecological monitoring project using bottom-mounted passive 
acoustic monitoring equipment during the effective period of this rule 
to better understand the long-term distribution of marine mammals in 
the project area with a focus on detecting NARW. This long-term study 
will contribute to the understanding of the potential impacts of the 
project and inform any potential adaptive management strategies. NMFS 
is not requiring this study as part of monitoring requirements.
Reporting
    Prior to any construction activities occurring, Sunrise Wind will 
provide a report to NMFS Office of Protected Resources that 
demonstrates that all required training for Sunrise Wind personnel, 
which includes the vessel crews, vessel captains, PSOs, and PAM 
operators, have completed all required trainings.
    NMFS will require standardized and frequent reporting from Sunrise 
Wind during the life of the regulations and LOA. All data collected 
relating to the Project will be recorded using industry-standard 
software (e.g., Mysticetus or a similar software) installed on field 
laptops and/or tablets. Sunrise Wind is required to submit weekly, 
monthly, annual, situational, and final reports. The specifics of what 
NMFS requires to be reported can be found in the regulatory text at the 
end of this final rule.
    Weekly Report--During foundation installation activities, Sunrise 
Wind will 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.), and abbreviated SFV results. 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 will no longer be required. If 
UXO/MEC detonation occurs, all relevant information should be included 
in the weekly report.
    Monthly Report--Sunrise Wind is required to compile and submit 
monthly reports to NMFS Office of Protected Resources that include a 
summary of all information in the weekly reports, including project 
activities carried out in the previous month, vessel transits (number, 
type of vessel, and route), number of piles installed, all detections 
of marine mammals, and any mitigative actions taken. Monthly reports 
will 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--Sunrise Wind is required to submit an annual 
marine mammal monitoring (both PSO and PAM) report to NMFS Office of 
Protected Resources by March 31, annually, describing, in detail, all 
of the information required in the monitoring section above for the 
previous calendar year. A final annual report must be prepared and 
submitted within 30 calendar days following receipt of any NMFS 
comments on the draft report.
    Final Reporting--Sunrise Wind must submit its draft 5-year 
report(s) to NMFS Office of Protected Resources. The report must 
contain, but is not limited to, a description of activities conducted 
(including GIS files where relevant), and all visual and acoustic 
monitoring, including SFV and monitoring effectiveness, 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.
    Situational Reporting--Specific situations encountered during the 
development of the Project require immediate reporting. For instance, 
if a NARW 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 NARW 
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 NARW Detection 
Template at: 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 will 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, Sunrise Wind must immediately cease all activities 
until NMFS Office of Protected Resources is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
LOA. NMFS Office of Protected Resources may impose additional measures 
to minimize the likelihood of further prohibited take and ensure MMPA 
compliance. Sunrise Wind may not resume their activities until notified 
by NMFS Office of Protected Resources.
    In the event of a vessel strike of a marine mammal by any vessel 
associated with the Project, Sunrise Wind must immediately report the 
strike incident. If the strike occurs in the Greater Atlantic Region 
(Maine to Virginia), Sunrise Wind must call the NMFS Greater Atlantic 
Stranding Hotline. Separately, Sunrise Wind must also and immediately 
report the incident to NMFS Office of Protected Resources and GARFO. 
Sunrise Wind must immediately cease all on-water activities until NMFS 
Office of

[[Page 45373]]

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. Sunrise Wind may 
not resume their activities until notified by NMFS.
    In the event of any lost gear associated with the fishery surveys, 
Sunrise Wind must report to the GARFO as soon as possible or within 24 
hours of the documented time of missing or lost gear. This report must 
include information on any markings on the gear and any efforts 
undertaken or planned to recover the gear.
    The specifics of what NMFS Office of Protected Resources requires 
to be reported is listed at the end of this rulemaking in the 
regulatory text.
    Sound Field Verification--Sunrise Wind is required to submit 
interim SFV reports after each foundation installation and UXO/MEC 
detonation monitored as soon as possible, but within 48 hours. A final 
SFV report for all monopile foundation installation and UXO/MEC 
detonations would be required within 90 days following completion of 
acoustic monitoring.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Sunrise Wind'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 will 
provide NMFS with information that helps us to better understand the 
impacts of the project's activities on marine mammals and informs our 
consideration of whether any changes to mitigation and monitoring are 
appropriate. The use of adaptive management allows NMFS to consider new 
information and modify mitigation, monitoring, or reporting 
requirements, as appropriate, with input from Sunrise Wind regarding 
practicability, if such modifications will have a reasonable likelihood 
of more effectively accomplishing the goals 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 research on marine 
mammals, noise impacts, or other related topics; and (3) any 
information that reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOA. Adaptive management decisions may be made at any time, 
as new information warrants it. NMFS may consult with Sunrise Wind 
regarding the practicability of the modifications.

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, NMFS considers 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), effects on habitat, and the likely effectiveness of 
mitigation. NMFS also assesses the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    In the Estimated Take section to this preamble, NMFS discusses the 
estimated maximum number of takes by Level A harassment and Level B 
harassment that could occur incidental to Sunrise Wind's specified 
activities based on the methods described. The impact that any given 
take would have is dependent on many case-specific factors that need to 
be considered in the negligible impact analysis (e.g., the context of 
behavioral exposures such as duration or intensity of a disturbance, 
the health of impacted animals, the status of a species that incurs 
fitness-level impacts to individuals, etc.). In this final rule, NMFS 
evaluates the likely impacts of the enumerated harassment takes that 
are authorized in the context of the specific circumstances surrounding 
these predicted takes. NMFS also collectively evaluates 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 Sunrise Wind's specified activities that may result 
in take of marine mammals and an estimated schedule for conducting 
those activities. On February 22, 2024, Sunrise Wind provided NMFS an 
updated construction schedule, which shifts foundation pile 
installation from one year to two years. However, schedules may shift 
for a variety of reasons (e.g., weather or supply delays). The total 
number of takes would not exceed the maximum annual total in any given 
year or the 5-year totals as indicated in tables 30 and 31, 
respectively.
    NMFS bases its analysis and negligible impact determination on the 
maximum number of takes that could occur annually and across the 5-year 
effective period of these regulations, as well as extensive qualitative 
consideration of other contextual factors that influence the severity 
and nature of impacts have on the affected individuals and the number 
and context of 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, NMFS provides 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 Sunrise Wind's construction activities on marine mammals are 
expected to be relatively similar in nature. Then, it is subdivided 
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).

[[Page 45374]]

    Lastly, NMFS provides a negligible impact determination for each 
species or stock, providing species or stock-specific information or 
analysis, where appropriate (e.g., for NARW, given their population 
status). Organizing our analysis by grouping species or stocks that 
share common traits or that would respond similarly to effects of 
Sunrise Wind's activities, and then providing species- or stock-
specific information allows NMFS 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, the majority of the impacts are associated with WTG 
foundation and OCS-DC foundation installation, which may occur over two 
years per Sunrise Wind's updated schedule (2024 through 2025) (with 
maximum annual take assuming all foundation piles are installed in a 
single year). The take in the other years is expected to be notably 
less.
    As described previously, no serious injury or mortality is 
anticipated or would be authorized in any LOA issued under this rule. 
Non-auditory injury (e.g., lung injury or gastrointestinal injury from 
UXO/MEC detonation) is also not anticipated and would not be authorized 
in any LOA issued under this rule. Any Level A harassment authorized 
would be in the form of auditory injury (i.e., PTS).
    The number of takes by harassment Sunrise Wind has requested and 
NMFS may authorize in a LOA is based on exposure models that consider 
the outputs of acoustic source and propagation models. Several 
conservative parameters and assumptions are ingrained into the models, 
such as assuming forcing functions that consider direct contact with 
piles (i.e., no cushion allowances), and no consideration to the 
benefits of mitigation measures, other than 10 dB sound attenuation and 
seasonal restrictions, or an avoidance response. The number of takes 
requested and may be authorized in a LOA also reflects careful 
consideration of other data (e.g., group size data, PSO data). For all 
species, the number of takes authorized represents the maximum amount 
of Level A harassment and Level B harassment reasonably expected to 
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 not 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 Sunrise Wind's activities is 
dependent upon a number of contextual factors including, but not 
limited to, sound source frequencies, whether the sound source is 
stationary or 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), as described in the proposed rule, 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, NMFS would not expect Sunrise Wind's activities to 
produce conditions of long-term and continuous exposure to noise 
leading to long-term physiological stress responses in marine mammals 
that could affect reproduction or survival.
    In the range of exposures that might result in Level B harassment 
(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 a small 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 receives comparatively higher levels at very 
close distances, is exposed continuously to one source for a longer 
time or is exposed intermittently throughout the day. Such exposure 
might result in an animal having a more severe avoidance response and 
leaving a larger area for an extended duration, potentially, for 
example, losing feeding opportunities for a day or more. Such severe 
behavioral effects are expected to occur infrequently due to extensive 
mitigation and monitoring measures included in this rule.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (i.e., 24-hour cycle). 
Behavioral reactions to noise exposure, when taking place in a 
biologically important context, such as disruption of critical life 
functions, displacement, or avoidance of important habitat, are more 
likely to be significant if they last more than 1 day or recur on 
subsequent days (Southall et al., 2007) due to diel and lunar patterns 
in diving and foraging behaviors observed in many cetaceans (Baird et 
al., 2008; Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 
2014). It is important to note the water depth in the Project Area is 
shallow (ranging from 5.7 to 67 m (18.7 to 219.8 ft) in the SRWEC and 
35 to 62 m (115-203 ft) in the Lease Area) and deep diving species, 
such as sperm whales, are not expected to be engaging in deep foraging 
dives when exposed to noise above NMFS harassment thresholds during the 
specified activities. Therefore, NMFS does not anticipate impacts to 
deep foraging behavior to be impacted by the specified activities.
    It is important to identify that the estimated number of takes for 
each stock does not necessarily equate to the number of individual 
marine mammals expected to be harassed (which may be lower, depending 
on the circumstances), but rather to the instances of take (e.g., 
exposures above the Level B harassment thresholds) that may occur. 
These instances may represent either brief exposures of seconds for 
UXO/MEC detonations, seconds to minutes for HRG surveys, or, in some 
cases, longer durations of exposure within (but not exceeding) a day 
(e.g., pile driving). Some members of a species or stock may experience 
one exposure (i.e., be taken

[[Page 45375]]

on one day) as they move through an area, while other individuals may 
experience recurring instances of take over multiple days throughout 
the year, in which case the number of individuals taken is smaller than 
the total estimated take for that species or stock. 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. However, for non-migrating species 
and/or species with a larger number of estimated take, NMFS expects 
that the total estimated takes represent exposures of a smaller number 
of individuals of which some would be taken across multiple days.
    For Sunrise Wind, impact pile driving of foundation piles is most 
likely to result in a higher magnitude and severity of behavioral 
disturbance than other activities (i.e., vibratory pile driving, 
pneumatic hammering, UXO/MEC detonations, and HRG surveys). Impact pile 
driving, in general, and especially in the case of foundation 
installation, produces higher source levels than the other 
aforementioned activities. HRG survey equipment also produces much 
higher frequencies than pile driving, resulting in minimal sound 
propagation. While UXO/MEC detonations may have higher source levels 
than other activities, the number of UXO/MEC detonations is limited 
(three over five years) and they produce instantaneous noise levels 
(i.e., a total of approximately three seconds of blast noise and 
pressure would occur) as compared to multiple hours of pile driving or 
HRG surveys in a given day.
    While foundation installation impact driving is anticipated to be 
most impactful due to high source levels and multiple hour duration in 
a day, pile driving would not be occurring all day every day. In total, 
up to 348 hours (87 WTG foundations x 4 hours) of monopile foundation 
installation impact pile driving may occur within the 5-year effective 
duration of this final rule while an OCS-DC jacket foundation 
(comprised of pin piles that produce lower noise levels) would also be 
installed in a day. As described in the construction schedule 
scenarios, there may be cases where the WTG foundations are installed 
concurrently, further reducing the overall amount of time over which 
impact pile driving noise is being transmitted into marine mammal 
habitat. Impacts will be minimized through implementation of mitigation 
measures, including use of a sound attenuation system, soft-starts, and 
the implementation of clearance and shutdown zones that either delay or 
suspend, respectively, pile driving when marine mammals are detected at 
specified distances. Further, given sufficient notice through the use 
of soft-start, marine mammals are expected to move away from a pile 
driving sound source prior to becoming exposed to very loud noise 
levels. The requirement to couple visual monitoring (using multiple 
PSOs) and PAM before and during all foundation installation and UXO/MEC 
detonations will increase the overall capability to detect marine 
mammals compared to one method alone. Measures such as the requirement 
to apply sound attenuation devices and implement clearance zones also 
apply to UXO/MEC detonation(s), which also have the potential to elicit 
more severe behavioral reactions in the unlikely event that an animal 
is relatively close to the explosion in the instant that it occurs; 
hence, severity of behavioral responses are expected to be lower than 
would be the case without mitigation.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations. Even if some 
smaller subset of the takes are in the form of a longer (several hours 
or a day) and more severe response, impacts to individual fitness are 
not anticipated if the taking is not expected to be repeated over 
numerous or sequential days. 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 reduce the likelihood of more significant behavioral 
impacts (e.g., 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 Sunrise Wind's activities and, as described 
earlier, the takes by Level B harassment may represent takes in the 
form of direct behavioral disturbance, TTS, or both. As discussed in 
the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat section of the proposed rule, in general, TTS can last 
from a few minutes to days, be of varying degree, and occur across 
different frequency bandwidths, all of which determine the severity of 
the impacts on the affected individual, which can range from minor to 
more severe. Impact and vibratory pile driving and UXO/MEC detonations 
are broadband noise sources but generate sounds in the lower frequency 
ranges (with most of the energy below 1-2 kHz, but with a small amount 
energy ranging up to 20 kHz); therefore, in general and all else being 
equal, NMFS anticipates 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 Sunrise 
Wind's pile driving and UXO/MEC detonation activities would not 
typically span the entire frequency range of one vocalization type, 
much less span all types of vocalizations, and entire hearing range for 
any particular species, or the other critical auditory cues for any 
given species. The required mitigation measures further reduce the 
potential for TTS.
    Generally, both the degree of TTS and the duration of TTS would be 
greater if the marine mammal is exposed to a higher level of energy 
(which would occur when the peak dB level is higher or the duration is 
longer). The threshold for the onset of TTS was discussed previously 
(see the Estimated Take section of this preamble). However, source 
level alone is not a predictor of TTS. An animal would have to approach 
closer to the source or remain in the vicinity of the sound source 
appreciably longer to increase the received SEL, which would be 
difficult considering the required mitigation and the nominal speed of 
the receiving animal relative to the stationary sources such as impact 
pile driving. The recovery time of TTS is also important when 
considering the potential impacts from TTS. In TTS laboratory studies 
(as discussed in the Potential Effects of the Specified Activities on 
Marine Mammals and their Habitat section of the proposed rule), some 
using exposures of almost an hour in duration or up to 217 SEL, almost 
all individuals recovered within 1 day or less, but often in minutes. 
While the pile-driving activities last for hours a day, it is unlikely 
that most marine mammals would stay in the close vicinity of the source 
long enough to incur more severe TTS. UXO/MEC detonations also have the 
potential to result in TTS. However, given the duration of exposure is

[[Page 45376]]

extremely short (milliseconds), the degree of TTS (i.e., the amount of 
dB shift) is expected to be small and TTS duration is expected to be 
short (minutes to hours).
    Overall, given the small number of times that any individual might 
incur TTS, the low degree of TTS and the short anticipated duration, 
and that any TTS is not anticipated to overlap the entirety of a 
critical hearing range, it is unlikely that TTS (of the nature expected 
to result from the project's activities) would result in behavioral 
changes or other impacts that would impact any individual's (of any 
hearing sensitivity) reproduction or survival.

Permanent Threshold Shift (PTS)

    NMFS is authorizing a very small number 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 (tables 30 and 31). The only activities incidental to which 
NMFS anticipates PTS may occur is from exposure to impact pile driving 
and up to three UXO/MEC detonations, which produce sounds that are both 
impulsive and primarily concentrated in the lower frequency ranges 
(below 1 kHz) (David, 2006; Krumpel et al., 2021). PTS would consist of 
minor degradation of hearing capabilities occurring predominantly at 
frequencies one-half to one octave above the frequency of the energy 
produced by pile driving or instantaneous UXO/MEC detonation (i.e., the 
low-frequency region below 2 kHz) (Cody and Johnstone, 1981; McFadden, 
1986; Finneran, 2015), not severe hearing impairment. If hearing 
impairment occurs from either impact pile driving or UXO/MEC 
detonation, it is most likely that the affected animal would lose a few 
decibels in its hearing sensitivity, which in most cases is not likely 
to meaningfully affect its ability to forage and communicate with 
conspecifics.
    Sunrise Wind estimates three UXOs/MECs may be detonated and the 
exposure analysis conservatively assumes that all of the UXOs/MECs 
found would consist of the largest charge weight of UXO/MEC (E12; 454 
kg). However, it is highly unlikely that all charges would be the 
maximum size; thus, the number of takes by Level A harassment that may 
occur incidental to the detonation of the UXOs/MECs is likely less than 
what is estimated here.
    There are no PTS data on cetaceans and only one recorded 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. NMFS anticipates 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 pile driving for a duration long enough 
to produce more than a small degree of PTS and 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. Given UXO/MEC detonation is instantaneous, the potential for PTS 
is not a function of duration. NMFS recognizes the distances to PTS 
thresholds may be large for certain species (e.g., over 4 km based on 
the largest charge weights; table 20); however, there would be multiple 
vessels equipped with at minimum 3 PSOs each as well as PAM 
requirements to observe and acoustically detect marine mammals. A 
marine mammal within the PTS zone would trigger a delay to detonation; 
thereby minimizing potential for PTS for all marine mammal species.

Auditory Masking or Communication Impairment

    The ultimate potential impacts of masking on an individual are 
similar to those discussed for TTS (e.g., decreased ability to 
communicate, forage effectively, or detect predators), but an important 
difference is that masking only occurs during the time of the signal, 
as opposed to TTS, which continues beyond the duration of the signal. 
Also, though, masking can result from the sum of exposure to multiple 
signals, none of which might individually cause TTS. Fundamentally, 
masking is referred to as a chronic effect because one of the key 
potential harmful components of masking is its duration--the fact that 
an animal would have reduced ability to hear or interpret critical cues 
becomes much more likely to cause a problem the longer it is occurring. 
Inherent in the concept of masking is the fact that the potential for 
the effect is only present during the times that the animal and the 
source are in close enough proximity for the effect to occur (and 
further, this time period would need to coincide with a time that the 
animal was utilizing sounds at the masked frequency).
    As the analysis has indicated, for this project NMFS expects 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 
Sunrise Wind's activities, paired with habitat use patterns by marine 
mammals, does not support the likelihood that the level of masking that 
could occur would have the potential to affect reproductive success or 
survival.

Impacts on Habitat and Prey

    Construction activities and UXO/MEC detonation may result in fish 
and invertebrate mortality or injury very close to the source, and all 
Sunrise Wind's activities may cause some fish to leave the area of 
disturbance. It is anticipated that any mortality or injury would be 
limited to a very small subset of available prey and the implementation 
of mitigation measures such as the use of a noise attenuation system 
during impact pile driving and UXO/MEC detonation would further limit 
the degree of impact. Behavioral changes in prey in response to 
construction activities could temporarily impact marine mammals' 
foraging opportunities in a limited portion of the foraging range but, 
because of the relatively small area of the habitat that may be 
affected at any given time (e.g., around a pile being driven), the 
impacts to marine mammal habitat are not expected to cause significant 
or long-term negative consequences.
    Cable presence is not anticipated to impact marine mammal habitat 
as these would be buried, and any electromagnetic fields emanating from 
the cables are not anticipated to result in consequences that would 
impact marine mammals prey to the extent they would be unavailable for 
consumption.
    The presence and operations of wind turbines within the Lease Area 
could

[[Page 45377]]

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. For piscivorous marine mammal species, 
the presence of structures could result in a beneficial reef effect 
which may lead to increases in the availability of prey. However, 
turbine presence and operation are, 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). In the recently 
released BOEM and NOAA Fisheries North Atlantic Right Whale Strategy, 
the agencies identify the conceptual pathway by which changes to ocean 
circulation could potentially lead to fitness reduction of NARW, who 
primarily forage on copepods (see Figure 2). As described in the 
proposed rule, there is uncertainty regarding the intensity (or 
magnitude) and spatial extent of turbine operation impacts on marine 
mammals habitat, including planktonic prey. Recently, a National 
Academy of Sciences, Engineering, and Medicine panel of independent 
experts concluded that the impacts of offshore wind operations on NARW 
and their habitat in the Nantucket Shoals region (a key winter foraging 
habitat tens of kilometers to the east of the Project Area), is 
uncertain due to the limited data available at this time, and 
recognized what data is available is largely based on models from the 
North Sea that have not been validated by observations (National 
Academy of Sciences, 2023). The report also identifies that major 
oceanographic changes have occurred to the Nantucket Shoals region over 
the past 25 years and it will be difficult to isolate from the much 
larger variability introduced by natural and other anthropogenic 
sources (including climate change).
    The Project would consist of no more than 88 foundations (87 WTGs 
and 1 OCS-DC) in the Lease Area (which includes foraging habitat for 
NARW but is not located near more productive foraging habitat around 
Nantucket Shoals), which will gradually become operational during 
construction in batches with all turbines online after construction is 
complete. The Sunrise Wind Biological Opinion provided a comprehensive 
evaluation of the best available science and, based on those data, 
presented an assessment on the impacts related to presence and 
operation of the Project over the life of the project on, among other 
species, marine mammals and their prey (NMFS, 2023). Overall, the 
Biological Opinion concluded that the Project is not anticipated to 
adversely impact availability of free-swimming marine mammal prey 
(e.g., fish) but is anticipated to result in localized effects to the 
distribution and aggregation of the planktonic prey. However, these 
impacts are not likely to translate to any overall reduction in the 
amount of prey in the Project Area. Because changes in the biomass of 
zooplankton are not anticipated, any higher trophic level impacts are 
also not anticipated. The Biological Opinion also concluded that 
effects to listed marine mammal species from the entrainment of 
ichthyoplankton at the OCS-DC will be so small that they cannot be 
meaningfully measured, evaluated, or detected and are therefore, 
insignificant and any impacts, if they occur, from the thermal plume 
resulting from water discharge would be insignificant.
    The ESA-listed marine mammal species in the Biological Opinion 
include species that forage on a range on prey species (e.g., copepods, 
fish, invertebrates) and, therefore, the findings in the Biological 
Opinion also inform our understanding of the anticipated impacts on 
non-listed marine mammals such as small whales, dolphins, porpoises, 
and seals. Further, the Biological Opinion assesses the impacts to 
habitat over the life of the Project; wherein this final rule is 
effective for only 5 years and turbine operations would occur for only 
a portion of that time (2-3 years). Overall, in consideration of the 
Sunrise Wind Lease Area location and the assessment within the 
Biological Opinion, NMFS does not anticipate that impacts to marine 
mammal habitat, including prey, would result in meaningful impacts on 
marine mammals.

Mitigation To Reduce Impacts on All Species

    This proposed rulemaking includes a variety of mitigation measures 
designed to minimize, to the extent practicable, impacts on all marine 
mammals, with a focus on NARW (the latter is described in more detail 
below). For impact pile driving of foundation piles and UXO/MEC 
detonations, ten overarching mitigation and monitoring 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-starts; (7) use of noise attenuation technology; 
(8) maintaining situational awareness of marine mammal presence through 
the requirement that any marine mammal sighting(s) by Sunrise Wind 
personnel must be reported to PSOs; (9) sound field verification 
monitoring; and (10) Vessel Strike Avoidance measures to reduce the 
risk of a collision with a marine mammal and vessel. For casing pipes, 
sheet piles and goal post installation and removal, NMFS is requiring 
five overarching mitigation measures: (1) seasonal/time of day work 
restrictions; (2) use of multiple PSOs to visually observe for marine 
mammals (with any detection with specifically designated zones that 
would trigger a delay or shutdown); (3) implementation of clearance 
zones; (4) implementation of shutdown zones; and (5) maintaining 
situational awareness of marine mammal presence through the requirement 
that any marine mammal sighting(s) by Sunrise Wind personnel must be 
reported to PSOs. Lastly, for HRG surveys, NMFS is 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 Sunrise Wind personnel must be 
reported to PSOs.
    The Mitigation section discusses the manner in which the required 
mitigation measures reduce the magnitude and/or severity of takes of 
marine mammals. Seasonal restrictions on select activities avoid 
impacts from the activities. For activities with large harassment 
isopleths, Sunrise Wind is required to reduce 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

[[Page 45378]]

needed to install the pile and Sunrise Wind will not use a hammer 
energy greater than necessary to install piles. Similarly, ramp-up 
during HRG surveys would allow animals to move away and avoid the 
acoustic sources before they reach their maximum energy level. For all 
activities (with some exception for UXO/MEC detonations, which would 
not have a shutdown zone), clearance zone and shutdown zone 
implementation, which are required when marine mammals are within given 
distances associated with certain impact thresholds for all activities, 
will reduce the magnitude and severity of marine mammal take. 
Additionally, the use of multiple PSOs (for WTG and OCS-DC foundation 
installation, temporary casing pipes, sheet piles, and goal post 
installation and removal, UXO/MEC detonations, HRG surveys), PAM 
operators (for impact foundation installation and UXO/MEC detonations), 
and maintaining awareness of marine mammal sightings reported in the 
region (for WTG and OCS-DC foundation installation, temporary casing 
pipes, sheet piles, and goal post installation and removal, UXO/MEC 
detonations, HRG surveys) will aid in detecting marine mammals that 
would trigger the implementation of the mitigation measures. The 
reporting requirements including SFV reporting (for foundation 
installation, foundation operation, and UXO/MEC detonations), will 
assist NMFS in identifying if impacts beyond those analyzed in this 
final rule are occurring, potentially leading to the need to enact 
adaptive management measures in addition to or in place of the 
mitigation measures.

Mysticetes

    Six mysticete species (comprising six stocks) of cetaceans (NARW, 
blue whale, humpback whale, fin whale, sei whale, and minke whale) may 
be taken by harassment. These species, to varying extents, utilize the 
specified geographic region, including the Project Area, for the 
purposes of migration, foraging, and socializing. Mysticetes are in the 
low-frequency hearing group.
    Behavioral data on mysticete reactions to pile driving noise are 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, NMFS 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 be 
migrating through and/or engaged in foraging behavior. The extent to 
which an animal engages in these behaviors in the area is species-
specific and varies seasonally. Many mysticetes are expected to 
predominantly be migrating through the Project Area towards or from 
primary feeding habitats (e.g., Cape Cod Bay, Great South Channel, and 
Gulf of St. Lawrence). While NMFS has acknowledged above that 
mortality, hearing impairment, or displacement of mysticete prey 
species may result locally from impact pile driving and UXO/MEC 
detonations, given the very short duration of and broad availability of 
prey species in the area and the availability of alternative suitable 
foraging habitat for the mysticete species most likely to be affected, 
any impacts on mysticete foraging are expected to be minor. Whales 
temporarily displaced from the Project Area are expected to have 
sufficient remaining feeding habitat available to them, and would not 
be prevented from feeding in other areas within the biologically 
important feeding habitats, including to the east near Nantucket 
Shoals. In addition, any displacement of whales or interruption of 
foraging bouts would be expected to be relatively temporary in nature.
    The potential for repeated exposures is dependent upon the 
residency time of whales with migratory animals unlikely to be exposed 
on repeated occasions and animals remaining in the area to be more 
likely exposed repeatedly. For mysticetes, where relatively low numbers 
of species-specific take by Level B harassment are predicted (compared 
to the abundance of each mysticete species or stock; see table 30) 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, with perhaps a subset 
of takes for a few species potentially representing a few repeated of a 
limited number of individuals across multiple days. In other words, the 
behavioral disturbance to any individual mysticete would, therefore, be 
expected to mostly likely occur within a single day within a year, or 
potentially across a few days, and is not expected to impact 
reproduction or survival. In general, 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 Sunrise Wind has identified. 
Species-specific analysis regarding potential for repeated exposures 
and impacts is provided below.
    Humpback whales, minke whales, fin whales, and sei whales are the 
mysticete species for which PTS is anticipated and authorized. As 
described previously, PTS for mysticetes from some project activities 
may overlap frequencies used for communication, navigation, or 
detecting prey. However, given the nature and duration of the activity, 
the mitigation measures, and likely avoidance behavior, any PTS is 
expected to be of a small degree, would be limited to frequencies where 
pile driving noise is concentrated (i.e., only a small subset of their 
expected hearing range) and would not be expected to impact 
reproductive success or survival.
North Atlantic Right Whale
    NARW are listed as endangered under the ESA and the western 
Atlantic stock is considered depleted and strategic under the MMPA. As 
described in the Potential Effects to Marine Mammals and Their Habitat 
section of the proposed rule, NARW 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 NARW. Given 
this, the status of the NARW population is of heightened concern and, 
therefore, merits additional analysis and consideration. No Level A 
harassment, serious injury, or mortality is anticipated or authorized 
for this species.
    For NARW, this rule authorizes up to 45 takes by Level B harassment 
over the 5-year period, with a maximum annual allowable take of 32 
(equating to approximately 9.41 percent of the stock abundance, if each 
take were considered to be of a different individual), with far lower 
numbers expected in the years following foundation installation (e.g., 
years when only HRG surveys would be occurring). Less than half of all 
takes (i.e., 22) that would be authorized under this rule would be 
incidental to foundation installation impact pile

[[Page 45379]]

driving, the activity for which NMFS anticipates would result in the 
most intense behavioral responses. A similar number of takes (i.e., 17) 
would be incidental to HRG surveys, an activity for which the severity 
of any behavioral harassment is expected to be very low. The remaining 
takes would occur incidental to three instantaneous UXO/MEC detonations 
(i.e., 3 takes) and cable landfall construction (i.e., 3 takes).
    Southern New England, including the Project Area, is part of a 
known migratory corridor for NARW and may be a stopover site for 
migrating NARW moving to or from southeastern calving grounds and 
northern foraging grounds. However, NARW range outside of the Project 
Area for their main feeding, breeding, and calving activities. 
Additional qualitative observations in southern New England include 
animals feeding and socializing (Quintana-Rizzo et al., 2021). NARW are 
primarily concentrated in the northeastern and southeastern sections of 
the Massachusetts Wind Energy Area (MA WEA) (i.e., east of the Project 
Area) during the summer (June-August) and winter (December-February) 
while distribution likely shifts to the west, closer to the Project 
Area, into the Rhode Island/Massachusetts Wind Energy Area (RI/MA WEA) 
in the spring (March-May) (Quintana-Rizzo et al., 2021). Approximately 
23 percent of the NARW population is present in southern New England 
from December through May, and the mean residence time has tripled to 
an average of 13 days during these months (Quintana-Rizzo et al., 
2021).
    In general, NARW in the Project Area are expected to be engaging in 
migratory, feeding, and/or social behavior. Migrating whales would 
typically be moving through the Project Area, rather than lingering for 
extended periods of time (thereby limiting the potential for repeat 
exposures); however, foraging whales may remain in the Project Area, 
with an average residence time of 13 days between December and May 
(Quintana-Rizzo et al., 2021). It is important to note that the 
activities that would occur from December through April that may impact 
NARW using the habitat for foraging or migration would be primarily HRG 
surveys, of which impacts are expected to be minor given the rapid 
transmission loss resulting in the small (i.e., less than 150 m) Level 
B harassment zone. Across all years, if an individual were to be 
exposed during a subsequent year, the impact of that exposure is likely 
independent of the previous exposure given the duration between 
exposures.
    As described in the Description of Marine Mammals in the Geographic 
Area section of the proposed rule, NARW 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 NARW Given the current status of 
the NARW, the loss of even one individual could significantly impact 
the population. No mortality, serious injury, or injury of NARW as a 
result of the Project is expected or may be authorized under this rule. 
Any disturbance to NARW due to the Project'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 NARW will be reduced to the level of least 
practicable adverse impact through use of mitigation measures, the 
authorized number of takes of NARW 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. Sunrise Wind 
anticipates installing multiple foundations per day; therefore, the 
number of days with active pile driving is likely to be fewer than 87 
(i.e., the number of turbines). This activity is currently scheduled to 
occur over the course of 2 years, though this rule conservatively 
assumes all foundation installation would occur in one year; thus, the 
maximum annual take amount considered in the analysis is the highest 
number based on all foundations being installed in a single year. 
Foundation installation would also only occur during times when, based 
on the best available scientific data, NARW are less frequently 
encountered and less likely to be engaged in critical foraging behavior 
(although NMFS recognizes NARW may be present and forage year-round in 
the Project Area). The potential types, severity, and magnitude of 
impacts are also anticipated to mirror that described in the general 
Mysticetes section above, including avoidance (the most likely 
outcome), changes in foraging or vocalization behavior, masking, a 
small amount of TTS, and temporary physiological impacts (e.g., change 
in respiration, change in heart rate). Importantly, the effects of the 
activities are expected to be sufficiently low-level and localized to 
specific areas as to not meaningfully impact important behaviors such 
as migration and foraging for NARW. These takes are expected to result 
in temporary behavioral disturbance, such as slight displacement (but 
not abandonment) of migratory habitat or temporary cessation of 
feeding. Further, given many of 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 one 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 NARW 
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, NARW migrate, forage, or socialize in the Project 
Area but are not expected to remain in this habitat for extensive 
durations relative to core foraging habitats to the east, south of 
Nantucket and Martha's Vineyard, Cape Cod Bay, or the Great South 
Channel (Quintana-Rizzo et al., 2021). Any temporarily displaced 
animals would be able to return to or continue to travel through the 
Project Area and subsequently utilize this habitat 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 
during impact pile driving, pneumatic hammering and, for HRG surveys, 
would not appreciably occur given the directionality of the signals for 
the HRG survey equipment planned for use and the brief period for when 
an individual mammal would likely be exposed. Masking is expected to be 
of low consequence and intermittent within a day and confined to the 
months in which NARW are at lower densities and primarily moving 
through the area, the anticipated mitigation effectiveness, and likely 
avoidance behaviors. TTS is another potential form of Level B 
harassment that could result in brief periods of slightly reduced 
hearing sensitivity affecting behavioral patterns by making it more 
difficult to hear or interpret acoustic cues within the frequency range 
(and slightly above) of sound produced during impact pile

[[Page 45380]]

driving; however, any TTS would likely be of low amount, limited 
duration, and limited to frequencies where most construction noise is 
centered (below 2 kHz). NMFS expects that right whale hearing 
sensitivity would return to pre-exposure levels shortly after migrating 
through the area or moving away from the sound source.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section of the proposed rule, the distance of the receiver to 
the source influences the severity of response with greater distances 
typically eliciting less severe responses. NMFS recognizes that NARW 
migrating could be pregnant females (in the fall) and cows with older 
calves (in the spring), and that these animals may slightly alter their 
migration course in response to any foundation pile driving; however, 
NMFS anticipates that course diversion would be of small magnitude. 
Hence, while some avoidance of the pile-driving activities may occur, 
NMFS anticipates that any avoidance behavior of migratory NARW 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 NARW would 
be able to avoid areas during periods of active noise production while 
not being forced out of this portion of their habitat.
    NARW 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 
NARW to the maximum extent practicable. These mitigation measures 
(e.g., seasonal/daily work restrictions, vessel separation distances, 
reduced vessel speed) would not only avoid the likelihood of vessel 
strikes but also would minimize the severity of behavioral disruptions 
by minimizing impacts (e.g., through sound reduction using attenuation 
systems and reduced temporal overlap of project activities and NARW). 
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, Sunrise 
Wind would still be installing foundations when the presence of NARW is 
expected to be lower.
    As described in the Description of Marine Mammals in the Area of 
Specified Activities section in the preamble of this rule, Sunrise Wind 
would be constructed within the NARW migratory corridor BIA, which 
represents 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 351 km\2\ for 
OCS-A-0487 versus the size of the full NARW migratory BIA, 269,448 
km\2\) and the BIA extends far to the east of the Lease Area (to 
approximately the shelf edge) where impacts from the Project would not 
occur. Overall, NARW migration is not expected to be impacted by the 
planned activities. Although NARW forage to some degree in the Project 
Area, there are no known 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. Therefore, any impacts to prey that may 
occur are also unlikely to impact marine mammals.
    The most significant measure to minimize impacts to individual NARW 
is the seasonal moratorium on all foundation installation activities 
from January 1 through April 30 and the limitation on these activities 
in December (e.g., only work with approval from NMFS) when NARW 
abundance in the Project Area is expected to be highest. NMFS also 
expects this measure to greatly reduce the potential for mother-calf 
pairs to be exposed to impact pile driving noise above the Level B 
harassment threshold during their annual spring migration through the 
Project Area from calving grounds to primary foraging grounds (e.g., 
Cape Cod Bay). UXO/MEC detonations are also restricted from December 1 
through April 30, annually. NMFS expects that the severity of any take 
of NARW would be reduced due to the mitigation measures that would 
ensure that any exposures above the Level B harassment threshold would 
result in only short-term effects to individuals exposed.
    Pile driving and UXO/MEC detonations may only begin in the absence 
of NARW (based on visual and passive acoustic monitoring). If pile 
driving or UXO/MEC detonations have commenced, NMFS anticipates NARW 
would avoid the area, utilizing nearby waters to carry on pre-exposure 
behaviors. However, foundation installation activities must be shut 
down if a NARW is sighted at any distance or acoustically detected 
within the PAM monitoring zone, unless a shutdown is not feasible due 
to risk of injury or loss of life. Shutdown may occur anywhere if NARW 
are seen within or beyond the Level B harassment zone, further 
minimizing the duration and intensity of exposure. NMFS anticipates 
that if NARW go undetected and they are exposed to foundation 
installation or UXO/MEC detonation noise, it is unlikely a NARW would 
approach the sound source locations to the degree that they would 
purposely expose themselves to very high noise levels. This is because 
typical observed whale behavior demonstrates likely avoidance of 
harassing levels of sound where possible (Richardson et al., 1985). 
These measures are designed to avoid PTS and also reduce the severity 
of Level B harassment, including the potential for TTS. While some TTS 
could occur, given the mitigation measures (e.g., delay pile driving 
upon a sighting or acoustic detection and shutting down upon a sighting 
or acoustic detection), the potential for TTS to occur is low.
    The clearance and shutdown measures are most effective when 
detection efficiency is maximized, as the measures are triggered by a 
sighting or acoustic detection. To maximize detection efficiency during 
foundation installation, and in consideration of the offshore location 
of the activities and relatively large mitigation zones, 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 NARW sighting databases) 
such that as a NARW approaches the source (and thereby could be exposed 
to higher noise energy levels), PSO detection efficacy would increase, 
the whale would be detected, and a delay to commencing foundation 
installation or shutdown (if feasible) would occur. In addition, the 
implementation of a soft-start for impact pile driving would provide an 
opportunity for whales to move away from the source if they are 
undetected, reducing received levels. The UXO/MEC detonations 
mitigation measures described above would further reduce the potential 
to be exposed to high received levels. Clearance and shutdown zones, 
monitored via PSOs, are also required for cable landfall and

[[Page 45381]]

temporary pier activities. Given the nearshore/inshore location of 
these activities, the smaller mitigation zones, and that the severity 
of impacts is relatively low, PSOs are able to effectively monitor for 
marine mammals and PAM is not required.
    For HRG surveys, the maximum distance to the Level B harassment 
threshold is 141 m. The estimated take by Level B harassment associated 
with HRG surveys is to account for any potential exposures of NARW to 
active acoustic sources should there be a delay shutting it down (if 
called for). However, the authorized Level B harassment takes do not 
account for mitigation and monitoring, and because of the short maximum 
distance to the Level B harassment threshold, the requirement that 
vessels maintain a distance of 500 m from any NARW, the fact 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 
NARW is observed within 500 m of the source, any exposure to noise 
levels above the harassment threshold (if any) would be very brief. To 
further minimize exposures, ramp-up of sub-bottom profilers must be 
delayed during the clearance period if PSOs detect a NARW 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 NARW, 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 NARW is anticipated or allowed to be authorized under 
this rule. Extensive NARW-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 Project Area, many of the individuals 
predicted to be taken (including no more than 45 instances of take, by 
Level B harassment) over the course of the 5-year rule (with an annual 
maximum of no more than 32) would be impacted on only 1 or 2 days in a 
year, although it is possible that repeated exposures beyond this may 
occur should NARW briefly use the Project Area as a `stopover' site and 
stay or swim in and out of the areas with pile driving for more than 
day. Further, any impacts to NARW 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, Sunrise Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take (by Level B harassment) anticipated and 
allowed to be authorized under this rule will have a negligible impact 
on the NARW.
Blue Whale
    The blue whale is listed as endangered under the ESA, and the 
Western North Atlantic stock is considered depleted and strategic under 
the MMPA. There are no known areas of specific biological importance in 
or around the Project Area, and there is no ongoing UME. The actual 
abundance of the stock is likely significantly greater than what is 
reflected in the SAR because the most recent population estimates are 
primarily based on surveys conducted in U.S. waters and the stock's 
range extends well beyond the U.S. exclusive economic zone (EEZ). No 
serious injury or mortality is anticipated or authorized for this 
species.
    The rule authorizes up to eight takes, by Level B harassment, over 
the 5-year period. The maximum annual allowable take by Level B 
harassment is 4, which equates to approximately 1.00 percent of the 
stock abundance if each take were considered to be of a different 
individual. Based on the migratory nature of blue whales, and the fact 
that there are neither feeding nor reproductive areas documented in or 
near the Project Area, and in consideration of the very low number of 
predicted annual takes, it is unlikely that the predicted instances of 
takes would represent repeat takes of any individual. In other words, 
each take likely represents one whale exposed on one day within a year.
    With respect to the severity of those individual takes by Level B 
harassment, NMFS would anticipate impacts to be limited to low-level, 
temporary behavioral responses with avoidance and potential masking 
impacts in the vicinity of the turbine installation to be the most 
likely type of response. Any potential TTS would be concentrated at 
half or one octave above the frequency band of pile driving noise (most 
sound is below 2 kHz) which does not include the full predicted hearing 
range of blue whales. Any hearing ability temporarily impaired from TTS 
is anticipated to return to pre-exposure conditions within a relatively 
short time period after the exposures cease. Any avoidance of the 
Project Area due to the activities would be expected to be temporary.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Sunrise Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, NMFS 
has determined that the take by Level B harassment anticipated and 
authorized will have a negligible impact on the western North Atlantic 
stock of blue whales.
Fin Whale
    The fin whale is listed as endangered under the ESA, and the 
western North Atlantic stock is considered both depleted and strategic 
under the MMPA. No UME has been designated for this species or stock. 
No serious injury or mortality is anticipated or authorized for this 
species.
    The rule authorizes up to 91 takes, by harassment only, over the 5-
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, is 4 and 68, respectively (combined, this 
annual take (n=72) equates to approximately 1.06 percent of the stock 
abundance, if each take were considered to be of a different 
individual), with far lower numbers than that expected in the years 
without foundation installation (e.g., years when only HRG surveys 
would be occurring). Given the project overlaps a small portion of a 
fin whale feeding BIA (2,933 km\2\) in the months the project will 
occur (March-October) and that southern New England is generally 
considered a feeding area, 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

[[Page 45382]]

the full predicted hearing range of fin whales.
    Fin whales are present in the waters off of New England year-round 
and are one of the most frequently observed large whales and cetaceans 
in continental shelf waters, principally from Cape Hatteras, North 
Carolina 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). In the Project Area, fin whales densities are highest in the 
winter and summer months (Roberts et al., 2023) 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 feed more 
extensively in waters in the Great South Channel north to the Gulf 
Maine into the Gulf of St. Lawrence, areas north and east of the 
Project Area (Hayes et al., 2024).
    As described in the proposed rule, the Project Area overlaps 
approximately 12 percent of a small fin whale feeding BIA (2,933 km\2\) 
east of Montauk Point, New York (Figure 2.3 in LaBrecque et al., 2015) 
that is active from March to October. Foundation installations and UXO/
MEC detonations have seasonal work restrictions (i.e., spatial and 
temporal) such that the temporal overlap between the specified 
activities and the active BIA timeframe would exclude the months of 
March and April. A separate larger year-round feeding BIA (18,015 
km\2\) located to the east in the southern Gulf of Maine does not 
overlap with the Project Area and would thus not be impacted by project 
activities. NMFS anticipates that if foraging is occurring in the 
Project Area and foraging whales are exposed to noise levels of 
sufficient strength, they would avoid the Project Area and move into 
the remaining area of the feeding BIA that would be unaffected to 
continue foraging without substantial energy expenditure or, depending 
on the time of year, travel to the larger year-round feeding BIA.
    Given the documented habitat use within the area, some of the 
individuals taken would likely be exposed on multiple days. However, 
low level impacts are generally expected from any fin whale exposure. 
Given the magnitude and severity of the impacts discussed above 
(including no more than 91 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of 4 and 68, respectively), and in consideration of the 
required mitigation and other information presented, Sunrise Wind's 
activities are not expected to result in impacts on the reproduction or 
survival of any individuals, much less affect annual rates of 
recruitment or survival. For these reasons, NMFS has 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 Distinct Population Segments (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 Area of Specified Activities 
section of the preamble to this final rule, humpback whales along the 
Atlantic Coast have been experiencing an active UME as elevated 
humpback whale mortalities have occurred along the Atlantic coast from 
Maine through Florida since January 2016. Of the cases examined, 
approximately 40 percent had evidence of human interaction (vessel 
strike or entanglement). The UME does not yet provide cause for concern 
regarding population-level impacts and take from vessel strike and 
entanglement is not authorized. Despite the UME, the relevant 
population of humpback whales (i.e., 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 116 takes, by harassment only, over the 
5-year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, is 3 and 79, respectively (combined, this 
maximum annual take (n = 82) equates to approximately 5.87 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 feeding is considered the principal 
activity of humpback whales in southern New England waters, it is 
likely that some subset of the individual whales exposed could be taken 
several times annually.
    Among the activities analyzed, impact pile driving is likely to 
result in the highest number of Level A harassment annual take (n = 3) 
of humpback whales. The maximum number of authorized annual take by 
Level B harassment is highest for impact pile driving (n = 79; WTG plus 
OCS-DC foundations).
    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 in a feeding BIA in the Gulf of 
Maine/Stellwagen Bank/Great South Channel, but has been documented off 
the coast of southern New England and as far south as Virginia (Swingle 
et al., 2006). Foraging animals 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 consist of some individuals 
that may be exposed on multiple days if they are utilizing the area as 
foraging habitat. Also similar to other baleen whales, if migrating, 
such individuals would likely be exposed to noise levels from the 
project above the harassment thresholds only once during migration 
through the Project Area.
    For all the reasons described in the Mysticetes section above, NMFS 
anticipates 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 116 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of 3 and 79 respectively), and in consideration of the 
required mitigation measures and other information presented, Sunrise 
Wind's activities are not expected to result in impacts on the 
reproduction or survival of any individuals, much less affect annual 
rates of recruitment or survival. For these reasons, NMFS has 
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

[[Page 45383]]

Marine Mammals in the Area of Specified Activities section of this 
preamble, 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 23 takes by Level A harassment and 415 
takes by Level B harassment over the 5-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment is 23 and 
371, respectively (combined, this annual take (n = 394) equates to 
approximately 1.79 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 Area of Specified Activities 
section, minke whales inhabit coastal waters during much of the year 
and 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; Hayes et al., 2024). Spring 
through fall are times of relatively widespread and common acoustic 
occurrence on the continental shelf. From September through April, 
minke whales are frequently detected in deep-ocean waters throughout 
most of the western North Atlantic (Clark and Gagnon, 2002; Risch et 
al., 2014; Hayes et al., 2024). Because minke whales are migratory and 
their known feeding areas are north and east of the Project Area, 
including a feeding BIA in the southwestern Gulf of Maine and George's 
Bank, they would be more likely to be transiting 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 previously detailed in the Description of Marine Mammals in the 
Area of Specified Activities section, there is a UME for minke whales 
along the Atlantic coast, from Maine through South Carolina, with the 
highest number of deaths in Massachusetts, Maine, and New York. 
Preliminary findings in several of the whales have shown evidence of 
human interactions or infectious diseases. However, NMFS notes that the 
population abundance is greater than 21,000, and the take by harassment 
authorized through this action is not expected to exacerbate the 
UME.NMFS anticipates that the impacts of this harassment to follow 
those described in the general Mysticetes section above. Any potential 
PTS would be minor (i.e., 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 
(e.g., no more than 438 takes of the course of the 5-year rule, and a 
maximum annual allowable take by Level A harassment and Level B 
harassment, of 23 and 371, respectively), and in consideration of the 
required mitigation and other information presented, Sunrise Wind's 
activities are not expected to result in impacts on the reproduction or 
survival of any individuals, much less affect annual rates of 
recruitment or survival. For these reasons, NMFS has 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 37 takes by 
harassment over the 5-year period. The maximum annual allowable take by 
Level A harassment and Level B harassment, are 2 and 27, respectively 
(combined, this annual take (n = 29) equates to approximately 0.46 
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 this preamble, 
most of the sei whale distribution is concentrated in Canadian waters 
and seasonally in northerly U.S. waters, although they are uncommonly 
observed in the waters off of New York. 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 Level B 
harassment, NMFS anticipate impacts to be limited to low-level, 
temporary behavioral responses with avoidance and potential masking 
impacts in the vicinity of the WTG 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 37 takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment, of 2 and 27, respectively), and in consideration of the 
required mitigation and other information presented, Sunrise Wind's 
activities are not expected to result in impacts on the reproduction or 
survival of any individuals, much less affect annual rates of 
recruitment or survival. For these reasons, NMFS has 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, NMFS includes 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 
NMFS further divides them into the following subsections: sperm whales, 
dolphins and small whales, and harbor porpoise. These sub-sections 
include more specific information, as well as conclusions for each 
stock represented.
    The authorized takes of odontocetes are incidental to Sunrise 
Wind's specified activities. No serious injury or mortality is 
anticipated or authorized. NMFS anticipates 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), a larger subset of 
these takes are more likely to represent multiple exposures of some 
number of individuals than is the case for mysticetes, though some 
takes may also represent one-time exposures to an individual. 
Foundation installation is likely to disturb odontocetes to the 
greatest extent compared to UXO/MEC detonations and

[[Page 45384]]

HRG surveys. While NMFS expects animals to avoid the area during 
foundation installation and UXO/MEC detonations, their habitat range is 
extensive compared to the area ensonified during these activities. In 
addition, as described above, UXO/MEC detonations are instantaneous; 
therefore, any disturbance would be very limited in time.
    As described earlier, Level B harassment may include direct 
disruptions in behavioral patterns (e.g., avoidance, changes in 
vocalizations (from masking) or foraging), as well as those associated 
with stress responses or TTS. Odontocetes are highly mobile species, 
and similar to mysticetes, NMFS expects any avoidance behavior to be 
limited to the area near the sound source. While masking could occur 
during foundation installation, it would only occur in the vicinity of 
and during the duration of the activity and would not generally occur 
in a frequency range that overlaps most odontocete communication or any 
echolocation signals. The mitigation measures (e.g., use of sound 
attenuation systems, implementation of clearance and shutdown zones) 
would also minimize received levels such that the severity of any 
behavioral response would be expected to be less than exposure to 
unmitigated noise exposure.
    Any masking or TTS effects are anticipated to be of low severity. 
First, while the frequency range of pile driving, the most impactful 
planned activity in terms of response severity, falls within a portion 
of the frequency range of most odontocete vocalizations, odontocete 
vocalizations span a much wider range than the low frequency 
construction activities planned for the project. Also, as described 
above, recent studies suggest odontocetes have a mechanism to self-
mitigate the impacts of noise exposure (i.e., reduce hearing 
sensitivity), which could potentially reduce TTS impacts. Any masking 
or TTS is anticipated to be limited and would typically only interfere 
with communication within a portion of an odontocete's range and as 
discussed earlier, the effects would only be expected to be of a short 
duration and for TTS, a relatively small degree.
    Furthermore, odontocete echolocation occurs predominantly at 
frequencies significantly higher than low frequency construction 
activities. Therefore, there is little likelihood that threshold shift 
would interfere with feeding behaviors. For HRG surveys, the sources 
operate at higher frequencies than foundation installation activities 
and UXO/MEC detonations. However, sounds from these sources attenuate 
very quickly in the water column, as described above. Therefore, any 
potential for PTS and TTS and masking is very limited. Further, 
odontocetes (e.g., common dolphins, spotted dolphins, bottlenose 
dolphins) have demonstrated an affinity to bow-ride actively surveying 
HRG surveys. Therefore, the severity of any harassment, if it does 
occur, is anticipated to be minimal based on the lack of avoidance 
previously demonstrated by these species.
    The waters off the coast of New York are used by several odontocete 
species. However, none except the sperm whale are listed under the ESA 
and there are no known habitats of particular importance. In general, 
odontocete habitat ranges are far-reaching along the Atlantic coast of 
the U.S. and the waters off of New England, including the Project Area, 
do not contain any particularly unique odontocete habitat features.
Sperm Whales
    Sperm whales are listed as endangered under the ESA, and the North 
Atlantic stock is considered both depleted and strategic under the 
MMPA. The North Atlantic stock spans the East Coast out into oceanic 
waters well beyond the U.S. EEZ. Although listed as endangered, the 
primary threat faced by the sperm whale across its range (i.e., 
commercial whaling) has been eliminated. Current potential threats to 
the species globally include vessel strikes, entanglement in fishing 
gear, anthropogenic noise, exposure to contaminants, climate change, 
and marine debris. There is no currently reported trend for the stock 
and although the species is listed as endangered under the ESA, there 
are no current related issues or events associated 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 
22 takes by Level B harassment over the 5-year period. The maximum 
annual allowable take by Level B harassment is 14, which equates to 
approximately 0.24 percent of the stock abundance, if each take were 
considered to be of a different individual, with lower numbers than 
that expected in the years without foundation installation (e.g., years 
when only HRG surveys would be occurring). Given sperm whale's 
preference for deeper waters, especially for feeding, it is unlikely 
that individuals will remain in the Project Area for multiple days, and 
therefore, the estimated takes likely represent exposures of different 
individuals on 1 day each 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 22 takes by Level B harassment over the course 
of the 5-year rule, a maximum annual allowable take of 14, and in 
consideration of the required mitigation and other information 
presented, Sunrise Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, NMFS 
has determined that the take by Level B harassment anticipated and 
authorized will have a negligible impact on the North Atlantic stock of 
sperm whales.
    Dolphins and Small Whales (including delphinids)--The six species 
and stocks included in this group (which are indicated in table 2 in 
the Delphinidae family) are not listed under the ESA, nor are they 
listed as depleted or strategic 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 six delphinid species (constituting six stocks) with takes 
authorized for the Project are Atlantic white-sided dolphin, Atlantic 
spotted dolphin, bottlenose dolphin, long-finned pilot whale, Risso's 
dolphin, and common dolphin. The rule would allow for the total 
authorization of 70 to 11,001 takes (depending on species) by Level B 
harassment, over the 5-year period. The maximum annual allowable take 
for these species by Level B harassment, would range from 46 (Risso's 
dolphin) to 6,526 (common dolphin). Overall, this annual take equates 
to approximately 0.10 (Risso's dolphin) to 7.01 (common 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

[[Page 45385]]

(e.g., years when only HRG surveys would be occurring).
    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 (no Level A harassment is anticipated or 
authorized), authorized in any one year ranges between 46 (Risso's 
dolphin) to 6,526 (common dolphin). The number of takes authorized in 
the Year 2 through Year 5 of the rule is notably less and the 5-year 
total number of take (by Level B harassment) authorized ranges between 
70 (Risso's dolphin) and 11,001 (common dolphin). Further, though the 
estimated numbers of take are comparatively higher than the numbers for 
mysticetes, NMFS notes that for all species they are relatively low 
relative to the population abundance.
    For the common dolphin, given both the comparatively higher number 
of takes and the higher number of takes relative to the stock 
abundance, as well as the residential tendencies of this species, while 
some of the takes likely represent exposures of different individuals 
on 1 or 2 days a year, it is likely that some subset of the individuals 
exposed could be taken several 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, NMFS 
anticipates 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 for the specified activities, 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, the populations of all delphinid and small whale species 
and stocks for which NMFS authorizes take are stable (no declining 
population trends). 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, the specified 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, NMFS has determined that the take by harassment anticipated 
and authorized will have a negligible impact on all of the following 
species and stocks: Atlantic white-sided dolphins, Atlantic spotted 
dolphins, bottlenose dolphins, long-fined pilot whales, Risso's 
dolphins, and common dolphins.
    Harbor Porpoises--Harbor porpoises are not listed as threatened or 
endangered under the ESA, and the Gulf of Maine/Bay of Fundy stock is 
neither considered depleted or strategic under the MMPA. The stock is 
found predominantly in northern U.S. coastal waters (less than 150 m 
depth) and up into Canada's Bay of Fundy (between New Brunswick and 
Nova Scotia). Although the population trend is not known, there are no 
current related issues or events associated with the status of the 
stock that cause particular concern (e.g., no UMEs). No mortality or 
non-auditory injury are anticipated or authorized for this stock.
    The rule authorizes up to 1,187 takes, by harassment only, over the 
5-year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be 20 and 894, respectively (combined, 
this annual take (n = 914) equates to approximately 1.07 percent of the 
stock abundance, if each take were considered to be of a different 
individual), with lower numbers than that expected in the years without 
foundation installation (e.g., years when only HRG surveys would be 
occurring). Given the number of takes, while many of the takes likely 
represent exposures of different individuals on 1 day a year, some 
subset of the individuals exposed could be taken up to a few times 
annually.
    Regarding the severity of takes by Level A harassment and 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, UXO/MEC detonations, and 
pneumatic hammering. In response to pile driving, harbor porpoises are 
likely to avoid the area during construction, as previously 
demonstrated in Tougaard et al. (2009) in Denmark, in Dahne et al. 
(2013) in Germany, and in Vallejo et al. (2017) in the United Kingdom, 
although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. However, foundation 
installation is scheduled to occur off the coast of New York and given 
alternative foraging areas, any avoidance of the area by individuals is 
not likely to impact the reproduction or survival of any individuals. 
Regarding UXO/MEC detonations and pneumatic hammering, any TTS or 
behavioral response would be brief and of low severity given only 1 
UXO/MEC would be detonated on any given day and only up to 3 UXO/MECs 
could be detonated under these regulations and the brevity of pneumatic 
hammering required for installation and removal of both casing pipes, 
as previously described in the proposed rule.
    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. NMFS expects that 
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 November) 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 (>1800 m; Westgate et al., 1998), although the majority are 
found over the continental shelf. While harbor porpoises are likely to 
avoid the area during any of the project's construction activities, as 
demonstrated during

[[Page 45386]]

European wind farm construction, the time of year in which most work 
would occur is when harbor porpoises are not in highest abundance, and 
any work that does occur would not result in the species' abandonment 
of the waters off of New York.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, the specified 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, NMFS 
has 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 Area of Specified Activities 
section of this preamble, a UME has been designated for harbor seals 
and gray seals and is described further below. No serious injury or 
mortality is anticipated or authorized for this species.
    For the two seal species, the rule authorizes up to between 1,211 
(gray seals) and 2,717 (harbor seals) takes, 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 range from 5 to 
2,189 (harbor seals), and 3 to 975 (gray seals), respectively 
(combined, this annual take (n = 2,194 and 978) equates to 
approximately 3.50 to 3.58 percent of the stock abundance, if each take 
were considered to be of a different individual), with far lower 
numbers than that expected in the years without foundation installation 
(e.g., years when only HRG surveys would be occurring). Though gray 
seals and harbor seals are considered migratory and no specific feeding 
areas have been defined for 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 one 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 southern New England waters most 
often from December through April. 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. Seals are known 
to haulout in New York. However, neither Sunrise Wind nor NMFS expect 
in-air sounds produced to cause take of hauled out pinnipeds at 
distances greater several hundred meters. NMFS does not expect any 
harassment to occur and has not authorized any take from in-air impacts 
on hauled out seals.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section in the proposed rule, construction of wind farms in 
Europe resulted in pinnipeds temporarily avoiding construction areas 
but returning within short time frames after construction was complete 
(Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 2015; Russell 
et al., 2016; Brasseur et al., 2010). Effects on pinnipeds that are 
taken by Level B harassment in the Project Area would likely be limited 
to avoidance of the area and reactions such as increased swimming 
speeds, increased surfacing time, or decreased foraging (if such 
activity were occurring). Most likely, individuals would simply move 
away from the sound source and be temporarily displaced from those 
areas (Lucke et al., 2006; Edren et al., 2010; Skeate et al., 2012; 
Russell et al., 2016). Given the low anticipated magnitude of impacts 
from any given exposure (e.g., temporary avoidance), even repeated 
Level B harassment across a few days of some small subset of 
individuals, which could occur, is unlikely to result in impacts on the 
reproduction or survival of any individuals. Moreover, pinnipeds would 
benefit from the mitigation measures described in Sec.  217.315 of the 
regulations below.
    As described above, noise from pile driving is mainly low 
frequency, and while any PTS and TTS that does occur would fall within 
the lower end of pinniped hearing ranges (50 Hz to 86 kHz), PTS and TTS 
would not occur at frequencies around 5 kHz where pinniped hearing is 
most susceptible to noise-induced hearing loss (Kastelein et al., 
2018). In summary, any PTS and TTS would be of small degree and not 
occur across the entire, or even most sensitive, hearing range. Hence, 
any impacts from PTS and TTS are likely to be of low severity and not 
interfere with behaviors critical to reproduction or survival.Given the 
magnitude and severity of the impacts of the Sunrise Project discussed 
above, and in consideration of the required mitigation and other 
information presented, Sunrise Wind's activities are not expected to 
result in impacts on the reproduction or survival of any individuals, 
much less affect annual rates of recruitment or survival. For these 
reasons, NMFS has 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 
the 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 16 species of marine mammals (with 16 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 8 stocks, 1 percent or 
less of the stock abundance is authorized to be annually taken by

[[Page 45387]]

harassment; for the other 8 stocks, less than 10 percent of the stock 
abundance is authorized to be annually taken by harassment. Specific to 
the NARW, the maximum number of annual takes, which is by Level B 
harassment as no Level A harassment is anticipated or authorized, is 
32, or 9.41 percent of the stock abundance, assuming that each instance 
of take represents a different individual. Please see table 30 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 it proposes to authorize take for 
endangered or threatened species, in this case with the NOAA GARFO.
    There are five 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 project: NARW, sei 
whale, fin whale, blue whale, and sperm whale. The Permit and 
Conservation Division requested initiation of section 7 consultation on 
April 11, 2023 with GARFO on the issuance of the Sunrise Wind 
regulations and the associated 5-year LOA under section 101(a)(5)(A) of 
the MMPA.
    NMFS issued a Biological Opinion on September 28, 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/55726.
    Sunrise Wind is required to abide by the promulgated regulations, 
as well as the reasonable and prudent measures and terms and conditions 
of the Biological Opinion and Incidental Take Statement, as issued by 
NMFS.

National Environmental Policy Act (NEPA)

    To comply with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and NOAA Administrative Order 216-6A, NMFS must 
evaluate the 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 Sunrise Wind 
project, which was finalized on December 16, 2023 (88 FR 86927) and is 
available at: https://www.boem.gov/renewable-energy/state-activities/sunrise-wind. In accordance with 40 CFR 1506.3, NMFS independently 
reviewed and evaluated the 2023 Sunrise Wind 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 Sunrise Wind FEIS through a joint 
Record of Decision (ROD) with BOEM. The joint ROD for adoption of the 
2023 Sunrise Wind 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 Sunrise Wind's application for an 
incidental take regulations is an unlisted activity, and thus is not 
subject to Federal consistency requirements in the absence of the 
receipt and prior approval of an unlisted activity review request from 
the state by the Director of NOAA's Office for Coastal Management. 
Pursuant to 15 CFR 930.54, NMFS published notice of receipt of Sunrise 
Wind's application in the Federal Register on June 2, 2022 (87 FR 
33470) and published notice of the proposed rule on February 10, 2023 
(88 FR 8996). The States of New York, Rhode Island, and Massachusetts 
did not request approval from the Director of NOAA's Office for Coastal 
Management to review Sunrise Wind's application as an unlisted 
activity, and the time period for making such request has expired. 
Therefore, NMFS has determined the incidental take authorization is not 
subject to Federal consistency review.

[[Page 45388]]

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: May 2, 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 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

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

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


0
2. Add subpart FF, consisting of Sec. Sec.  217.310 through 217.319, to 
read as follows:
Subpart FF--Taking Marine Mammals Incidental to the Sunrise Wind 
Offshore Wind Farm Project Offshore Rhode Island
Sec.
217.310 Specified activity and specified geographical region.
217.311 Effective dates.
217.312 Permissible methods of taking.
217.313 Prohibitions.
217.314 Mitigation requirements.
217.315 Monitoring and reporting requirements.
217.316 Letter of Authorization.
217.317 Modifications of Letter of Authorization.
217.318-217.319 [Reserved]

Subpart AF--Taking Marine Mammals Incidental to the Sunrise Wind 
Offshore Wind Farm Project Offshore New York


Sec.  217.310  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to activities associated 
with the Sunrise Wind Offshore Wind Farm Project by Sunrise Wind, LLC 
(Sunrise Wind) and those persons Sunrise Wind authorizes or funds to 
conduct activities on its behalf in the area outlined in paragraph (b) 
of this section. Requirements imposed on Sunrise Wind 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 extends between Cape Hatteras, North Carolina, and Martha's 
Vineyard, Massachusetts, extending westward into the Atlantic to the 
100-m isobath, and includes, but is not limited to, the Bureau of Ocean 
Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A-
0487 Commercial Lease of Submerged Lands for Renewable Energy 
Development, one export cable route, and one sea-to-shore transition 
point at Smith Point County Park in Shirley, New York.
    (c) The specified activities are impact pile driving wind turbine 
generator (WTG) and offshore converter substation (OCS-DC) foundations; 
pneumatic hammering for installation and removal of temporary casing 
pipes; vibratory pile driving for installation and removal of temporary 
goal post and sheet piles; impact and vibratory pile driving associated 
with the Smith Point County Park temporary pier, high-resolution 
geophysical (HRG) site characterization surveys; detonation of 
unexploded ordnances (UXOs) or munitions and explosives of concern 
(MECs); fisheries and benthic monitoring surveys; placement of scour 
protection; trenching, laying, and burial activities associated with 
the installation of the export cable from the OCS-DC to shore based 
converter stations and inter-array cables between WTG foundations; 
vessel transit within the specified geographical region to transport 
crew, supplies, and materials; and WTG operations.


Sec.  217.311  Effective dates.

    Regulations in this subpart are effective from June 21, 2024, 
through June 20, 2029.


Sec.  217.312  Permissible methods of taking.

    Under a LOA issued pursuant to Sec. Sec.  216.106 and 217.316, 
Sunrise Wind and those persons it authorizes or funds to conduct 
activities on its behalf, may incidentally, but not intentionally, take 
marine mammals within the specified geographic area in the following 
ways, provided Sunrise Wind is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate LOA.
    (a) By Level B harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving WTG and OCS-DC foundations; 
pneumatic hammering of casing pipes; vibratory pile driving of goal 
posts and sheet piles; UXOs/MEC detonations, and HRG site 
characterization surveys.
    (b) By Level A harassment associated with impact pile driving WTG 
and OCS-DC foundations and UXO/MEC detonations.
    (c) The incidental take of marine mammals by the activities listed 
in paragraphs (a) and (b) of this section is limited to the following 
species and stocks:

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


[[Page 45389]]

Sec.  217.313  Prohibitions.

    Except for the takings described in Sec.  217.312 and authorized by 
a LOA issued under Sec.  217.316 or Sec.  217.317, 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 a LOA issued under Sec. Sec.  217.316 
and 217.317.
    (b) Take any marine mammal not specified in Sec.  217.312(c).
    (c) Take any marine mammal specified in Sec.  217.312(c) in any 
manner other than specified in Sec.  217.312(a) and (b).
    (d) Take any marine mammal, as specified in Sec.  217.312(c), after 
NMFS determines such taking results in more than a negligible impact on 
the species or stocks of such marine mammals.


Sec.  217.314  Mitigation requirements.

    When conducting the specified activities identified in Sec. Sec.  
217.310(c) and 217.312, Sunrise Wind must implement the following 
mitigation measures contained in this section and any LOA issued under 
Sec.  217.316 or Sec.  217.317. These mitigation measures include, but 
are not limited to:
    (a) General conditions. Sunrise Wind must comply with the following 
general measures:
    (1) A copy of any issued LOA must be in the possession of Sunrise 
Wind 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) Sunrise Wind must conduct training for construction 
supervisors, construction crews, and the PSO and PAM team prior to the 
start of all construction activities and when new personnel join the 
work in order to explain responsibilities, communication procedures, 
marine mammal monitoring and reporting protocols, and operational 
procedures. 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) PSOs and PAM operators have the authority to call for a delay 
or shutdown to an activity and Sunrise Wind must instruct all personnel 
regarding the authority of the PSOs and PAM operators. If a shutdown of 
an activity is called for by a PSO or PAM operator, Sunrise Wind 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 PSO, PAM operator, 
and the activity operator regarding delays or shutdowns must only be 
discussed after the mitigative action has occurred;
    (4) Sunrise Wind and PSOs are required to use available sources of 
information on North Atlantic right whale presence to aid in monitoring 
efforts. These include daily monitoring of the Right Whale Sighting 
Advisory System, consulting of the WhaleAlert app, and monitoring of 
the Coast Guard's VHF Channel 16 to receive notifications of marine 
mammal sightings and information associated with any Dynamic Management 
Areas (DMA) and Slow Zones;
    (5) Any marine mammal observation by project personnel must be 
immediately communicated to any on-duty PSOs and PAM operator(s). Any 
large whale observation or acoustic detection must be conveyed to all 
vessel captains;
    (6) 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 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 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 30 minutes for all baleen whale 
species and sperm whales, and 15 minutes for all other species;
    (7) 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;
    (8) For in-water construction heavy machinery activities listed in 
section 1(a)(1), if a marine mammal is detected within, or about to 
enter, 10 meters (m) (32.8 feet (ft)) of equipment, Sunrise Wind must 
cease operations until the marine mammal has moved more than 10 m on a 
path away from the activity to avoid direct interaction with equipment;
    (9) All vessels must be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and Sunrise 
Wind must report all Maritime Mobile Service Identify (MMSI) numbers to 
NMFS Office of Protected Resources;
    (10) By accepting a LOA, Sunrise Wind 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 this subpart and the LOA; and
    (11) 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. Sunrise Wind must comply with 
the following vessel strike avoidance measures while in the specific 
geographic region, unless a deviation is necessary to maintain safe 
maneuvering speed and justified because the vessel is in an area where 
oceanographic, hydrographic, and/or meteorological conditions severely 
restrict the maneuverability of the vessel; an emergency situation 
presents a threat to the health, safety, 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. An 
emergency is defined as a serious event that occurs without warning and 
requires immediate action to avert, control, or remedy harm.
    (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 in the specified geographical region; 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

[[Page 45390]]

strike avoidance mitigation requirements; 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;
    (2) Confirmation of the vessel personnel's training and 
understanding of the LOA requirements must be documented on a training 
course log sheet and reported to NMFS within 30 days of completion of 
training;
    (3) All vessel operators and dedicated visual observers must 
maintain a vigilant watch for all marine mammals and slow down, stop 
their vessel, or alter course to avoid striking any marine mammal;
    (4) All transiting vessels, operating at any speed must have a 
dedicated visual observer on duty at all times to monitor for marine 
mammals within a 180[deg] direction of the forward path of the vessel 
(90[deg] port to 90[deg] starboard) located at an appropriate vantage 
point for ensuring vessels are maintaining appropriate separation 
distances. Dedicated visual observers may be PSOs or crew members, but 
crew members responsible for these duties must be provided sufficient 
training by Sunrise Wind to distinguish marine mammals from other 
phenomena and must be able to identify a marine mammal as a North 
Atlantic right whale, other large whale (defined in this context as 
sperm whales or baleen whales other than North Atlantic right whales), 
or other marine mammals. Dedicated 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 not have any other 
duties while observing and must receive prior training on protected 
species detection and identification, vessel strike avoidance 
procedures, how and when to communicate with the vessel captain, and 
reporting requirements in this subpart;
    (5) All vessel operators and dedicated visual observers must 
continuously monitor US Coast Guard VHF Channel 16 at the onset of 
transiting through the duration of transit. At the onset of transiting 
and at least once every 4 hours, vessel operators and/or trained crew 
member(s) must 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;
    (6) All vessel operators must abide by vessel speed regulations (50 
CFR 224.105). Nothing in this subpart exempts vessels from any other 
applicable marine mammal speed or approach regulations;
    (7) In the event that a DMA or Slow Zone is established that 
overlaps with an area where a project-associated vessel is operating, 
that vessel, regardless of size, must transit that area at 10 kn or 
less;
    (8) Between November 1st and April 30th, all vessels, regardless of 
size, must operate port to port (specifically from ports in New Jersey, 
New York, Maryland, Delaware, and Virginia) at 10 kn or less, except 
for vessels while transiting in Narragansett Bay or Long Island Sound;
    (9) All vessels, regardless of size, must immediately reduce speed 
to 10 kn or less when any large whale, (other than a North Atlantic 
right whale), mother/calf pairs, or large assemblages of non-delphinid 
cetaceans are observed within 500 m (0.31 mi) of a transiting vessel;
    (10) All vessel operators must immediately reduce speed to 10 kn 
(11.5 mph) 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 shall trigger an 
additional 24-hour period. If a vessel is traveling at speed greater 
than 10 kn (11.5 mph) (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, Sunrise Wind 
must monitor the transit corridor in real-time with PAM prior to and 
during transits. If a North Atlantic right whale is detected via visual 
observation or PAM within or approaching the transit corridor, all 
vessels in the transit corridor must travel at 10 kn (11.5 mph) 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 North Atlantic right whale visual or 
acoustic detection in the transit corridor in the past 24 hours; 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 (11.5 mph) or 
less such that the 500-m minimum separation distance requirement is not 
violated. If a North Atlantic right whale is sighted within 500 m of an 
underway vessel, that vessel must turn away from the whale(s), 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;
    (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 an underway 
vessel, the vessel must turn away from the whale(s), reduce speed, and 
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 delphinid cetaceans and pinnipeds with an exception 
made for those that approach the vessel (e.g., bow-riding dolphins). If 
a delphinid cetacean or pinniped is sighted within 50 m of a transiting 
vessel, that vessel must turn away from the animal(s), reduce speed, 
and 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) All vessels underway must not divert or alter course to 
approach any marine mammal;
    (14) Prior to transit, vessel operators must check for information 
regarding the establishment of Seasonal and Dynamic Management Areas, 
Slow Zones, and any information regarding North Atlantic right whale 
sighting locations; and
    (15) Sunrise Wind must submit a Marine Mammal Vessel Strike 
Avoidance Plan 180 days prior to the planned start of vessel activity 
that provides details on all relevant mitigation and monitoring 
measures for marine mammals, vessel speeds and transit protocols from 
all planned ports, vessel-based observer protocols for transiting 
vessels, communication and reporting plans, and proposed alternative 
monitoring equipment in varying weather conditions, darkness, sea 
states, and in consideration of the use of artificial lighting. If 
Sunrise Wind plans to implement PAM in any transit corridor to allow 
vessel transit above 10 kn the plan must describe how PAM, in 
combination with visual observations, will be conducted. 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. 
Sunrise Wind must comply with any approved Marine Mammal Vessel Strike 
Avoidance Plan.

[[Page 45391]]

    (c) Wind turbine generator (WTG) and offshore converter substation 
(OCS-DC) foundation installation. The requirements in paragraphs (c)(1) 
through (27) of this section apply to impact pile driving activities 
associated with the installation of WTG and OCS-DC foundations:
    (1) Foundation impact pile driving activities must not occur 
January 1 through April 30, annually. Foundation impact pile driving 
must not be planned in December; however, it may only occur if 
necessary to complete the Project within a given year with prior 
approval by NMFS. Sunrise Wind must notify NMFS in writing by September 
1 of that year that pile driving cannot be avoided, and circumstances 
are expected to necessitate pile driving in December;
    (2) No more than four monopiles may be installed per day;
    (3) Monopiles must be no larger than a tapered 7/12 m monopile 
design. 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);
    (4) Sunrise Wind must not initiate pile driving earlier than 1 hour 
after civil sunrise or later than 1.5 hours prior to civil sunset, 
unless Sunrise Wind submits, and NMFS approves, a Nighttime Pile 
Driving Plan, that demonstrates the efficacy of their night vision 
devices to effectively monitor the mitigation zones. Sunrise Wind must 
submit this Plan or Plans (if separate Daytime Reduced Visibility and 
Nighttime Monitoring Plans are prepared) to NMFS Office of Protected 
Resources at least 180 calendar days before impact pile driving is 
planned to begin. This Plan(s) must include, but is not limited to, a 
complete description of how Sunrise Wind will monitor pile driving 
activities during reduced visibility conditions (e.g. rain, fog) and at 
night, including proof of the efficacy of monitoring devices (e.g., 
mounted thermal/infrared camera systems, hand-held or wearable night 
vision devices NVDs, spotlights) in detecting marine mammals over the 
full extent of the required clearance and shutdown zones, including 
demonstration that the full extent of the minimum visibility zones can 
be effectively and reliably monitored. The Plan must identify the 
efficacy of the technology at detecting marine mammals in the clearance 
and shutdown zones under all the various conditions anticipated during 
construction, including varying weather conditions, sea states, and in 
consideration of the use of artificial lighting. If the plan does not 
include a full description of the proposed technology, monitoring 
methodology, and data demonstrating to NMFS Office of Protected 
Resources's satisfaction that marine mammals can reliably and 
effectively be detected within the clearance and shutdown zones for 
monopiles before and during impact pile driving, nighttime pile driving 
(unless a pile was initiated 1.5 hours prior to civil sunset) may not 
occur. Additionally, this Plan must contain a thorough description of 
how Sunrise Wind will monitor pile driving activities during daytime 
when unexpected changes to lighting or weather occur during pile 
driving that prevent visual monitoring of the full extent of the 
clearance and shutdown zones;
    (5) Sunrise Wind must utilize a soft-start protocol at the 
beginning of foundation installation for each impact pile driving event 
and at any time following a cessation of impact pile driving of 30 
minutes or longer;
    (6) Sunrise Wind must deploy, at minimum, a double bubble curtain 
and AdBm during all monopile foundation pile driving and, at minimum, a 
double bubble curtain during all jacket foundation pile driving; (i) 
The double bubble curtain must distribute air bubbles using an air flow 
rate of at least 0.5 m\3\/(min*m). The double bubble curtain must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must make appropriate adjustments to the air supply and operating 
pressure such that the maximum possible sound attenuation performance 
of the bubble curtain(s) is achieved.
    (ii) The lowest bubble ring must be in contact with the seafloor 
for the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact.
    (iii) No parts of the ring or other objects may prevent full 
seafloor contact with a bubble curtain ring.
    (iv) Sunrise Wind must inspect and carry out appropriate 
maintenance on the noise attenuation system prior to every pile driving 
event and prepare and submit a Noise Attenuation System (NAS) 
inspection/performance report. For piles for which complete SFV is 
carried out, this report must be submitted as soon as it is available, 
but no later than when the interim SFV report is submitted for the 
respective pile. Performance reports for all subsequent piles must be 
submitted with the weekly pile driving reports. All reports must be 
submitted by email to [email protected]. For any noise 
mitigation device in addition to the bubble curtain, Sunrise Wind must 
inspect and carry out appropriate maintenance on the system and ensure 
the system is functioning properly prior to every pile driving event.
    (7) Sunrise Wind must utilize PSO(s). Each pile driving platform, 
including a minimum of a secondary, PSO-dedicated vessel, must have at 
least three on-duty PSOs;
    (8) Concurrent with visual monitoring, Sunrise Wind must utilize at 
least one PAM operator who must be actively monitoring for marine 
mammals one hour before, during and 30 minutes after impact pile 
driving with PAM. PAM operators must immediately communicate all 
detections of marine mammals to the Lead PSO, including any 
determination regarding species identification, distance, and bearing 
and the degree of confidence in the determination;
    (9) Sunrise Wind must utilize NMFS-approved PAM systems. 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. Sunrise Wind 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);
    (10) Sunrise Wind 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, but is not limited to, a description of all proposed PAM 
equipment; the calibration data; bandwidth capability; and sensitivity 
of hydrophones 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, including, deployment 
locations, procedures, detection review methodology, and protocols; 
hydrophone detection ranges with and without foundation installation 
activities and data supporting those ranges; communication time between 
call and

[[Page 45392]]

detection, and data transmission rates between PAM Operator and PSOs on 
the pile driving vessel; where PAM Operators will be stationed relative 
to hydrophones and PSOs on pile driving vessel calling for delay/
shutdowns; and a full description of all proposed software, call 
detectors, and filters. The Plan must also include a description of 
Sunrise Wind's evaluation of the planned acoustic detection software 
using the PAM Atlantic baleen whale annotated data set available at 
National Centers for Environmental Information (NCEI) and provide 
evaluation/performance metrics (e.g., false negatives/positives);
    (11) Sunrise Wind must establish clearance and shutdown zones, 
which must be measured using the radial distance around the pile being 
driven. PSOs must visually monitor clearance zones for marine mammals 
for a minimum of 60 minutes prior to commencing pile driving. At least 
one PAM operator must review data from at least 24 hours prior to pile 
driving and actively monitor hydrophones for 60 minutes prior to pile 
driving, at all times during pile driving, and for 30 minutes after 
pile driving. All clearance zones must be confirmed to be free of 
marine mammals for 30 minutes immediately prior to the beginning of 
soft-start procedures. If a marine mammal is detected within or about 
to enter the applicable clearance zones, during this 30-minute time 
period, impact pile driving, including soft-start, must be delayed 
until the animal has been visually observed exiting the clearance zone 
or until a specific time period has elapsed with no further sightings. 
The specific time periods are 30 minutes for all baleen whale species 
and sperm whales and 15 minutes for all other species;
    (12) For North Atlantic right whales, any visual observation by a 
PSO at any distance or acoustic detection within the 10 km PAM 
Monitoring Zone must trigger a delay to the commencement of pile 
driving;
    (13) PSOs must be able to visually clear (i.e., confirm no marine 
mammals are present), at minimum, the minimum visibility zone. The 
entire minimum visibility zone must be visible (i.e., not obscured by 
dark, rain, fog, etc.) for a full 30 minutes immediately prior to 
commencing impact pile driving;
    (14) If a marine mammal is detected (visually or acoustically) 
entering or within the respective shutdown after pile driving has 
begun, the PSO or PAM operator must call for a shutdown of pile driving 
and Sunrise Wind must stop pile driving immediately, unless shutdown is 
not practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals, or the lead engineer determines there is 
risk of pile refusal or pile instability. If pile driving is not shut 
down due to one of these situations, Sunrise Wind must reduce hammer 
energy to the lowest level practicable;
    (15) 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 30 minutes for all baleen whale 
species and sperm whales and 15 minutes for all other species. In cases 
where these criteria are not met, pile driving may restart only if 
necessary to maintain pile stability at which time Sunrise Wind must 
use the lowest hammer energy practicable to maintain stability.
    (16) Sunrise Wind 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. 
Sunrise Wind 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 detail all plans and procedures for sound 
attenuation, including procedures for adjusting the noise attenuation 
system(s) and available contingency noise attenuation measures/systems 
if distances to modeled isopleths of concern are exceeded during SFV. 
The Plan must include 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 and an informal guide to 
aid personnel in identifying species if they are observed in the 
vicinity of the project area;
    (17) Sunrise Wind must perform complete sound field verification 
(SFV) measurements during installation of, at minimum, the first three 
monopile WTG foundations and all OCS-DC foundation pin piles;
    (18) Complete 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 complete 
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., from higher hammer energy, 
greater number of strikes, harder substrate composition, deeper water 
etc.);
    (i) Complete SFV 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;
    (ii) At each measurement distance, there must be a near bottom and 
mid-water column hydrophone (measurement system); and
    (iii) Sunrise Wind must submit complete SFV interim reports within 
48 hours after each foundation is measured and before an additional 
foundation is installed. If any of the interim SFV reports submitted 
indicate that distances to the Level A harassment and Level B 
harassment thresholds exceed those modeled assuming 10-dB attenuation, 
then Sunrise Wind must implement additional measures on all subsequent 
foundations to ensure the measured Level A and Level B harassment 
isopleths do not exceed those modeled for foundation installation, 
assuming 10-dB attenuation. Sunrise Wind 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. For every 1,500 m that a marine 
mammal clearance or shutdown zone is expanded, additional PSOs must be 
deployed from additional platforms/vessels to ensure adequate and 
complete monitoring of the expanded shutdown and/or clearance zone with 
each observer responsible for maintaining watch in no more than 
120[deg] and of an area with a radius no greater than 1,500 m. Sunrise 
Wind 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 Sunrise 
Wind can evaluate

[[Page 45393]]

the situation and ensure future piles will not exceed noise levels 
modeled assuming 10-dB attenuation;
    (19) Sunrise Wind also must conduct abbreviated SFV, using at least 
one acoustic recorder (consisting of a bottom and mid-water column 
hydrophone) for every foundation for which complete SFV monitoring is 
not conducted. Abbreviated SFV reports must be included in weekly 
reports. Any indications that distances to the identified Level A 
harassment and Level B harassment thresholds for marine mammals may be 
exceeded based on this abbreviated monitoring must be addressed by 
Sunrise Wind in the weekly report, including an explanation of factors 
that contributed to the exceedance and corrective actions that were 
taken to avoid exceedance on subsequent piles. Sunrise Wind must meet 
with NMFS within two business days of Sunrise Wind's submission of a 
report that includes an exceedance to discuss if any additional action 
is necessary;
    (20) 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;
    (21) 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;
    (22) Sunrise Wind must be prepared with additional equipment (e.g., 
hydrophones, recording devices, hydrophone calibrators, cables, 
batteries), which exceeds the amount of equipment necessary to perform 
the measurements, such that technical issues can be mitigated before 
measurement;
    (23) If any of the SFV measurements from any pile indicate that the 
distance to any isopleth of concern is greater than those modeled 
assuming 10-dB attenuation before the next pile is installed Sunrise 
Wind must implement the following measures as applicable: identify and 
propose for review and concurrence: additional, modified, and/or 
alternative noise attenuation measures or operational changes that 
present a reasonable likelihood of reducing sound levels to the modeled 
distances; provide a written explanation to NMFS Office of Protected 
Resources supporting that determination and requesting concurrence to 
proceed; and, following NMFS Office of Protected Resources's 
concurrence, deploy those additional measures on any subsequent piles 
that are installed (e.g., if threshold distances are exceeded on pile 1 
then additional measures must be deployed before installing pile 2);
    (24) If acoustic measurements indicate that ranges to isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds are less than the ranges predicted by modeling (assuming 10-
dB attenuation), Sunrise Wind may request to NMFS Office of Protected 
Resources a modification of the mitigation zones for non-North Atlantic 
right whale species;
    (25) Sunrise Wind 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;
    (26) Sunrise Wind 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 Sunrise 
Wind 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, Sunrise Wind 
must include information in the SFV Plan on how additional sites/
scenarios would be selected for SFV measurements. This 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. Pile driving may not occur 
until NMFS approves the SFV Plan for this activity; and
    (27) If a subsequent monopile installation location is selected 
that was not represented by previous three locations (i.e., substrate 
composition, water depth), complete SFV must be conducted.
    (d) Cable landfall construction. Sunrise Wind must comply with the 
following measures during cable landfall construction activities:
    (1) Sunrise Wind must conduct vibratory pile driving and pneumatic 
hammering during daylight hours only;
    (2) Sunrise Wind must have a minimum of two PSOs on active duty 30 
minutes before, during, and 30 minutes after any installation and 
removal of the temporary sheet piles, casing pipes and goal posts. 
These PSOs must always be located at the best vantage point(s) on the 
vibratory pile driving, pneumatic hammering, or secondary platform in 
the immediate vicinity of the vibratory pile driving or pneumatic 
hammering platform in order to ensure that appropriate visual coverage 
is available for the entire visual clearance zone and as much of the 
Level B harassment zone, as possible;
    (3) Sunrise Wind must establish clearance and shutdown zones. If a 
marine mammal(s) is observed entering or is observed within the 
clearance zones, before vibratory pile driving or pneumatic hammering 
has begun, the activity must not commence until the animal(s) has 
exited the zone at its own volition or a specific amount of time has 
elapsed since the last sighting. The specific time periods are 30 
minutes for all baleen whale species and sperm whales, and 15 minutes 
for all other species;
    (4) If a marine mammal is observed entering or within the 
respective shutdown zone after pile driving has begun, the PSO must 
call for a shutdown of pile driving and Sunrise Wind must stop pile 
driving immediately, unless shutdown is not practicable due to imminent 
risk of injury or loss of life to an individual or risk of damage to a 
vessel that creates risk of injury or loss of life for individuals, or 
the lead engineer determines there is risk of pile refusal

[[Page 45394]]

or pile instability. If pile driving is not shut down due to one of 
these situations, Sunrise Wind must reduce hammer energy to the lowest 
level practicable;
    (5) Pile driving must not restart until either the marine mammal(s) 
has voluntarily left and have been visually confirmed beyond the 
clearance zone, or, when specific time periods have elapsed with no 
further sightings or acoustic detections have occurred. The specific 
time periods are 30 minutes for all baleen whale species and sperm 
whales, and 15 minutes for all other species; and
    (6) Sunrise Wind 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) UXO/MEC detonation. Sunrise wind must comply with the measures 
related to UXO/MEC detonation in paragraphs (e)(1) through (12) of this 
section:
    (1) Sunrise Wind may only detonate a maximum of three UXO/MECs, of 
varying sizes;
    (2) Sunrise Wind must not detonate UXOs/MECs from December 1 
through April 30, annually;
    (3) Sunrise Wind must only detonate UXO/MECs during daylight hours 
(1 hour after civil sunrise through 1.5 hours prior to civil sunset);
    (4) Upon encountering a UXO/MEC of concern, Sunrise Wind may only 
resort to high-order removal (i.e., detonation) if all other means of 
removal are impracticable;
    (5) Sunrise Wind must utilize a dual noise abatement system (e.g., 
double bubble curtain) around all UXO/MEC detonations and operate that 
system in a manner that achieves the maximum noise attenuation levels 
practicable. If a double bubble curtain is used, it must be placed at a 
distance such that the nozzle hose remains undamaged;
    (6) A pressure transducer must be used to monitor pressure levels 
during all UXO/MEC detonations;
    (7) Sunrise Wind must use at least 3 visual PSOs on each PSO 
platform and one PAM operator to monitor for marine mammals in the 
clearance zones prior to detonation. If the clearance zone is larger 
than 2 km (based on charge weight), Sunrise Wind must deploy a 
secondary PSO vessel. If the clearance is larger than 5 km (based on 
charge weight), an aerial platform must be used unless Sunrise Wind 
determines an aerial platform is not practical and, in such case, an 
additional vessel must be used;
    (8) Sunrise Wind must establish and implement clearance zones for 
UXO/MEC detonation using both visual and acoustic monitoring. Clearance 
zones must be fully visible for at least 60 minutes and all marine 
mammal(s) must be confirmed to be outside of the clearance zone for at 
least 30 minutes prior to detonation. PAM must also be conducted for at 
least 60 minutes prior to detonation and the zone must be acoustically 
cleared during this time;
    (9) If a marine mammal is observed entering or within the clearance 
zone prior to denotation, the activity must be delayed. Detonation may 
only commence if all marine mammals have been confirmed to have 
voluntarily left the clearance zones and been visually confirmed to be 
beyond the clearance zone, or when 60 minutes have elapsed without any 
redetections for whales (including the North Atlantic right whale) or 
15 minutes have elapsed without any redetections of delphinids, harbor 
porpoises, or seals;
    (10) During each UXO/MEC detonation, Sunrise Wind must conduct SFV, 
in accordance with a NMFS-approved UXO/MEC SFV Plan, at a minimum of 
three locations, with two water depths at each location, from each 
detonation in a direction toward deeper water to empirically determine 
source levels (peak and cumulative sound exposure level), the ranges to 
the isopleths corresponding to the Level A harassment and Level B 
harassment thresholds, and estimated transmission loss coefficient(s);
    (11) If SFV measurements on any of the detonations indicate that 
the ranges to Level A harassment and Level B harassment thresholds are 
larger than those modeled, assuming 10-dB attenuation, Sunrise Wind 
must modify the clearance zones, with approval from NMFS, and apply 
additional noise attenuation measures (e.g., improve efficiency of 
bubble curtain(s)) before the next detonation event of similar size; 
and
    (12) Sunrise Wind must prepare and submit a UXO/MEC Marine Mammal 
Monitoring Plan to NMFS for review and approval at least 180 days 
before the start of any UXO/MEC detonations. The plan must include 
final project design and all information related to visual and PAM PSO 
monitoring protocols for UXO/MEC detonations.
    (f) HRG surveys. The following requirements apply to HRG surveys 
operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers, and 
Compressed High Intensity Radiated Pulse (CHIRPS)) (hereinafter 
referred to as ``acoustic sources''):
    (1) Sunrise Wind 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) or otherwise updated. 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;
    (2) 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;
    (3) Sunrise Wind must use at least one PSO during daylight 
operations and two PSOs during nighttime operations, per vessel;
    (4) PSOs must begin visually monitoring 30 minutes prior to the 
initiation of the specified acoustic source (including ramp-up, if 
applicable), through 30 minutes after the use of the specified acoustic 
source has ceased;
    (5) Prior to starting the survey and after receiving confirmation 
from the PSOs that the clearance zone is clear of any marine mammals, 
Sunrise Wind 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). Any 
ramp-up of acoustic sources may only commence when visual clearance 
zones are fully visible (e.g., not obscured by darkness, rain, fog, 
etc.) and clear of marine mammals, as determined by the Lead PSO, for 
at least 30 minutes immediately prior to the initiation of survey 
activities using a specified acoustic source. Ramp-ups must be 
scheduled so as to minimize the time spent with the source activated;
    (6) Prior to a ramp-up procedure starting, the acoustic source 
operator must notify the Lead PSO of the planned start of ramp-up. The 
notification time must not be less than 60 minutes prior to the planned 
ramp-up or activation in order to allow the PSO(s) 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;
    (7) A PSO conducting pre-start clearance observations must be 
notified again immediately prior to reinitiating

[[Page 45395]]

ramp-up procedures and the operator must receive confirmation from the 
PSO to proceed;
    (8) If a marine mammal is observed within a clearance zone during 
the 30 minute 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 periods are 30 minutes for 
all baleen whale species and sperm whales, and 15 minutes for all other 
species;
    (9) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision/reduced 
visibility condition 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;
    (10) Once the survey has commenced, Sunrise Wind must shut down 
acoustic sources if a marine mammal enters a respective shutdown zone. 
In cases when the shutdown zones become obscured for brief periods 
(less than 30 minutes) due to inclement weather, survey operations 
would be allowed to continue (i.e., no shutdown is required) so long as 
no marine mammals have been detected. The shutdown requirement does not 
apply to small delphinids of the following genera: Delphinus, Stenella, 
Lagenorhynchus, and Tursiops. If there is uncertainty regarding the 
identification of a marine mammal species (i.e., whether the observed 
marine mammal belongs to one of the delphinid genera for which shutdown 
is waived), the PSOs must use their best professional judgment in 
making the decision to call for a shutdown. Shutdown is required if a 
delphinid that belongs to a genus other than those specified in this 
paragraph of this section is detected in the shutdown zone. If there is 
uncertainty regarding the identification of a marine mammal species 
(e.g., 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;
    (11) 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 30 minutes for all baleen whale species 
and sperm whales, and 15 minutes for all other species have elapsed 
with no further sighting. If an acoustic source is shut down for 
reasons other than mitigation (e.g., mechanical difficulty) for less 
than 30 minutes, it 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. If an 
acoustic source is shut down for a period longer than 30 minutes, then 
all clearance and ramp-up procedures must be initiated;
    (12) If multiple HRG vessels are operating concurrently, any 
observations of marine mammals must be communicated to PSOs on all 
nearby survey vessels; and
    (13) Should an autonomous survey vehicle (ASV) be used during HRG 
surveys, the ASV must remain with 800 m (2,635 ft) of the primary 
vessel while conducting survey operations; two PSOs must be stationed 
on the mother vessel at the best vantage points to monitor the 
clearance and shutdown zones around the ASV; at least one PSO must 
monitor the output of a thermal high-definition camera installed on the 
mother vessel to monitor the field-of-view around the ASV using a hand-
held tablet, and during periods of reduced visibility (e.g., darkness, 
rain, or fog), PSOs must use night-vision goggles with thermal clip-ons 
and a hand-held spotlight to monitor the clearance and shutdown zones 
around the ASV.
    (g) Fisheries monitoring surveys. The requirements in paragraphs 
(g)(1) through (12) of this section apply to fishery monitoring 
surveys:
    (1) Marine mammal monitoring must be conducted by the captain and/
or a member of the scientific crew before (within 1 nautical mile (nmi) 
(1.85 km) and 15 minutes prior to deploying gear), during, and after 
haul back;
    (2) 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;
    (3) Sunrise Wind must implement the following ``move-on'' rule. If 
marine mammals are sighted within 1 nm (nmi (1.2 mi)) of the planned 
location in the 15 minutes before gear deployment, then Sunrise Wind 
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, Sunrise Wind and its cooperating institutions, 
contracted vessels, or commercially hired captains must move again or 
to skip the station;
    (4) All captains and crew conducting fishery surveys will be 
trained in marine mammal detection and identification;
    (5) 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;
    (6) Sunrise Wind 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);
    (7) Trawl tows must be limited to a maximum of 20 minute trawl-
time;
    (8) All gear must be emptied as close to the deck/sorting area and 
as quickly as possible after retrieval in order to avoid injury to 
animals that may be caught in the gear;
    (9) All fisheries monitoring gear must be fully cleaned and 
repaired (if damaged) before each use/deployment;
    (10) All in-water survey gear, including buoys, must be properly 
labeled with the scientific permit number or identification as Sunrise 
Wind'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. Any lost gear associated with the fishery surveys must be 
reported to the NOAA Greater Atlantic Regional Fisheries Office 
Protected Resources Division within 24 hours;
    (11) All survey gear must be removed from the water whenever not in 
active survey use (i.e., no wet storage); and
    (12) All reasonable efforts, that do not compromise human safety, 
must be undertaken to recover gear.
    (h) Temporary pier construction. The following requirements apply 
to impact and vibratory pile driving during temporary pier construction 
at Smith Point County Park:
    (1) Sunrise Wind must delay or shutdown pile driving if a marine 
mammal is observed entering or within the Level B harassment zones; and
    (2) At least one PSO must be on duty monitoring for marine mammals 
30 minutes prior to, during and 30 minutes after pile driving.

[[Page 45396]]

Sec.  217.315  Monitoring and reporting requirements.

    Sunrise Wind must implement the following monitoring and reporting 
requirements when conducting the specified activities (see Sec.  
217.310(c)): (a) Protected species observer (PSO) and passive acoustic 
monitoring (PAM) operator qualifications: Sunrise Wind must implement 
the following measures applicable to PSOs and PAM operators:
    (1) Sunrise Wind 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 personnel with regard to the presence of protected 
species and mitigation requirements;
    (2) All PSOs and PAM operators must have successfully attained a 
bachelor's degree from an accredited college or university with a major 
in one of the natural sciences, a minimum of 30 semester hours or 
equivalent in the biological sciences, and at least one undergraduate 
course in math or statistics. The educational requirements may be 
waived if the PSO or PAM operator has acquired the relevant skills 
through a suitable amount of alternate experience. Requests for such a 
waiver must be submitted to NMFS Office of Protected Resources and must 
include written justification containing alternative experience. 
Alternate experience that may be considered includes, but is not 
limited to, previous work experience conducting academic, commercial, 
or government-sponsored marine mammal visual and/or acoustic surveys; 
or previous work experience as a PSO/PAM operator;
    (3) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving targets 
on the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable); ability to conduct field 
observations and collect data according to the assigned protocols; 
sufficient training, orientation, or experience with the construction 
operation to provide for personal safety during observations; writing 
skills sufficient to document observations, including but not limited 
to, the number and species of marine mammals observed, the dates and 
times of when in-water construction activities were conducted, the 
dates and time when in-water construction activities were suspended to 
avoid potential incidental take of marine mammals from construction 
noise within a defined shutdown zone, and marine mammal behavior; and 
the ability to communicate orally, by radio, or in-person, with project 
personnel to provide real-time information on marine mammals observed 
in the area;
    (4) All PSOs must be trained in northwestern Atlantic Ocean marine 
mammal identification and behaviors and must be able to conduct field 
observations and collect data according to assigned protocols. 
Additionally, PSOs must have the ability to work with all required and 
relevant software and equipment necessary during observations described 
in paragraphs (b)(2) and (3) of this section);
    (5) All PSOs and PAM operators must successfully complete a 
relevant training course within the last 5 years and obtain a 
certificate of course completion;
    (6) PSOs and PAM operators are responsible for obtaining NMFS' 
approval. NMFS may approve PSOs as conditional or unconditional. A 
conditionally approved PSO 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 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 must be paired with an 
unconditionally approved PSO;
    (7) PSOs for cable landfall and temporary pier construction (i.e., 
vibratory and impact pile installation and removal; pneumatic 
hammering) and HRG surveys may be unconditionally or conditionally 
approved. PSOs and PAM operators for foundation installation and UXO 
detonation must be unconditionally approved;
    (8) At least one on-duty PSO for each activity (e.g., foundation 
installation, cable landfall and temporary pier construction, and HRG 
surveys) must be designated as the Lead PSO. The Lead PSO must meet the 
minimum requirements described in paragraphs (a)(2) through (5) of this 
section, have a minimum of ninety days of at-sea experience working in 
the Northwest Atlantic Ocean and have no more than eighteen months 
elapsed since the conclusion of their last at-sea experience;
    (9) Sunrise Wind 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, 
Sunrise Wind 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) 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, 
including experience with relevant Project acoustic software and 
equipment. They must also demonstrate experience detecting and 
identifying Atlantic Ocean marine mammals sounds, including North 
Atlantic right whale sounds, humpback whale sounds and deconflicting 
them from similar North Atlantic right whale sounds and other co-
occurring species' sounds in the area. The PAM operator 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 and must be able to distinguish 
between whether a marine mammal or other species sound is detected, 
possibly detected, not detected. Where localization of sounds or 
deriving bearings and distance are possible, the PAM operators must 
demonstrate experience in using this technique. PAM operators must have 
the qualifications and relevant experience/training to safely deploy 
and retrieve equipment and program the software, as necessary and test 
software and hardware functionality prior to operation; and
    (12) 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.
    (b) General PSO and PAM operator requirements. The following 
measures apply to PSOs and PAM operators and must be implemented by 
Sunrise Wind:

[[Page 45397]]

    (1) All PSOs must be located at the best vantage point(s) on any 
platform, as determined by the Lead PSO, in order to collectively 
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;
    (2) 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 use a NMFS-approved PAM 
system to conduct monitoring;
    (3) During periods of low visibility (e.g., darkness, rain, fog, 
poor weather conditions, etc.), PSOs must use alternative technology 
(e.g., infrared or thermal cameras) to monitor the mitigation zones;
    (4) PSOs and PAM operators must not exceed 4 consecutive watch 
hours on duty at any time, must have a 2-hour (minimum) break between 
watches, and must not exceed a combined watch schedule of more than 12 
hours in a 24-hour period;
    (5) For UXO/MEC detonation areas larger than 2 km, Sunrise Wind 
must use a secondary PSO vessel to monitor for marine mammals. For any 
additional vessels determined to be necessary, three PSOs must be used 
and located at the appropriate vantage point on the vessel. These 
additional PSOs would maintain watch during the same time period as the 
PSOs on the primary monitoring vessel. For detonation areas larger than 
5 km, Sunrise Wind must use an aircraft or additional PSO vessels in 
addition to the primary monitoring vessel to monitor for marine 
mammals. If an aircraft is used, two PSOs must be used and located at 
the appropriate vantage point on the aircraft. These additional PSOs 
would maintain watch during the same time period as the PSOs on the 
primary monitoring vessel;
    (6) During foundation installation and UXO/MEC detonation, Sunrise 
Wind 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;
    (7) During cable landfall construction, at least two PSOs must be 
on active duty 30 minutes prior to, during, and 30 minutes after all 
pile driving activities; and
    (8) Sunrise Wind must ensure that visual PSOs conduct, as rotation 
schedules allow, observations for comparison of sighting rates and 
behavior with and without use of the specified acoustic sources. Off-
effort PSO monitoring must be reflected in the PSO monitoring reports.
    (c) Reporting. Sunrise Wind must comply with the reporting measures 
in paragraphs (c)(1) through (20) of this section:
    (1) Prior to initiation of project activities, Sunrise Wind must 
demonstrate in a report submitted to NMFS Office of Protected Resources 
([email protected]) that all required training for 
Sunrise Wind personnel, including the vessel crews, vessel captains, 
PSOs, and PAM operators has been completed;
    (2) Sunrise Wind must use a standardized reporting system. 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 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 section 5 herein;
    (4) If a marine mammal is acoustically detected during PAM 
monitoring, the following information must be recorded and reported to 
NMFS: 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 and site name; 
name and version of detection or sound analysis software used, with 
protocol reference; minimum and maximum frequencies viewed/monitored/
used in detection (in Hz); name of PAM operator(s) on duty; bottom 
depth and depth of recording unit (in meters); recorder (model & 
manufacturer) and platform type (i.e., bottom-mounted, electric glider, 
etc.),

[[Page 45398]]

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. 1microPascal ([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);
    (5) Full marine mammal acoustic 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;
    (6) Sunrise Wind must compile and submit weekly reports during 
foundation installation to NMFS Office of Protected Resources that 
document SFV results, the daily start and stop of all pile driving HRG 
survey, or UXO/MEC detonation activities 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-Saturday) and must include 
the information required under this section. The weekly report must 
identify which turbines become operational and when (a map must be 
provided);
    (7) Sunrise Wind must compile and submit monthly reports to NMFS 
Office of Protected Resources during foundation installation 
([email protected]) that include a summary of all 
information in the weekly reports, including project activities carried 
out in the previous month, vessel transits (number, type of vessel, 
MMIS number, and route), number of piles installed, number of UXO/MEC 
detonations, 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.
    (8) Sunrise Wind must submit draft annual marine mammal monitoring 
report to NMFS ([email protected]) no later than March 
31, annually. Sunrise Wind must submit a draft annual SFV report to 
NMFS ([email protected]) no later than 90 days after 
SFV is completed for the year. The annual marine mammal monitoring 
report 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 
annual SFV report must summarize all reporting during complete and 
abbreviated monitoring for the construction year. The final annual 
reports must be prepared and submitted within 30 calendar days 
following the receipt of any comments from NMFS on the draft report;
    (9) Sunrise Wind must submit its draft final 5-year report to NMFS 
([email protected]) on all visual and acoustic 
monitoring, including SFV, conducted within 90 calendar days of the 
completion of the specified activities. A 5-year report must be 
prepared and submitted within 30 calendar days following receipt of any 
NMFS Office of Protected Resources comments on the draft report. The 
draft and final 5-year report must include, but is not limited to: the 
total number (annually and across all five years) of marine mammals of 
each species/stock detected and how many were detected within the 
designated Level A harassment and Level B harassment zone(s) with 
comparison to authorized take of marine mammals for the associated 
activity; a summary table(s) indicating the amount of each activity 
type (e.g., pile installation, HRG) completed in each of the five years 
and total; GIS shapefile(s) of the final location of all piles, cable 
routes, and other permanent structures including an indication of what 
year installed and began operating; GIS shapefile of all North Atlantic 
right whale sightings, including dates and group sizes; a five-year 
summary and evaluation of all SFV data collected; a five-year summary 
and evaluation of all PAM and SFV data collected; a five-year summary 
and evaluation of marine mammal behavioral observations; a five-year 
summary and evaluation of mitigation and monitoring implementation and 
effectiveness; and a list of recommendations to inform environmental 
compliance assessments for future offshore wind actions.
    (10) For those foundations requiring complete SFV measurements, 
Sunrise Wind must provide the initial results of the SFV measurements 
to NMFS Office of Protected Resources in an interim report after each 
foundation installation event as soon as they are available and prior 
to any subsequent foundation installation, but no later than 48 hours 
after each completed foundation installation event. The report must 
include hammer energies/schedule used during pile driving or UXO/MEC 
weight (including donor charge weight), the model-estimated acoustic 
ranges (R95) to compare with the real-world sound 
field measurements, estimated source levels at 1 m and/or 10 m, peak 
sound pressure level (SPLpk) and median,

[[Page 45399]]

mean, maximum, and minimum 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 
(SELs-s) and SELcum) 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 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. 
Sunrise Wind 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, Sunrise Wind must indicate full 
details of the calibration procedure, results, and any associated 
issues in the 48-hour interim reports;
    (11) All abbreviated SFV results must be included in the weekly 
reports. The report must include estimated source levels at 1 m or 10 m 
and the measured SELcum noise levels at distance. Any indications that 
distances to the identified Level A harassment and Level B harassment 
thresholds for marine mammals were exceeded must be addressed by 
Sunrise Wind, including an explanation of factors that contributed to 
the exceedance and corrective actions that were taken to avoid 
exceedance on subsequent piles;
    (12) 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. Sunrise Wind must submit a revised report within 30 
days following receipt of NMFS' comments on the draft final report;
    (13) Sunrise Wind must submit SFV results from UXO/MEC detonation 
monitoring in a report prior to detonating a subsequent UXO/MEC or 
within the relevant weekly report, whichever comes first. The report 
must include, at minimum, the size of UXO/MEC detonated and doner 
charge weight, why detonation was necessary, current speeds, SELcum, a 
description of the noise abatement system and operational parameters 
(e.g., bubble flow rate, distance deployed from the detonation, etc.) 
and any action taken to adjust the noise abatement system, modeled and 
SFV-based estimated ranges to all relevant NMFS explosive thresholds 
(including those from pressure transducer measurements);
    (14) If at any time during the project Sunrise Wind 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, Sunrise Wind 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;
    (15) Performance reports for each bubble curtain deployed must 
include water depth (m), current speed (m/s) and direction (degrees), 
wind speed (m/s) and direction (degrees), Beaufort sea state, bubble 
curtain deployment/retrieval date and time (UTC), bubble curtain hose 
length (m), bubble curtain radius (distance from pile) (m), diameter of 
holes and hole spacing (metric units), air supply hose length (m), 
compressor type (including rated Cubic Feet per Minute (CFM) and model 
number), number of operational compressors, performance data from each 
compressor (including Revolutions Per Minute (RPM), pressure, start and 
stop times [UTC]), free air delivery (m\3\/min), total hose air volume 
(m\3\/(min m)), schematic of GPS waypoints during hose laying, 
maintenance procedures performed and results (pressure tests, 
inspections, flushing, re-drilling, and any other hose or system 
maintenance) before and after installation and start and stop times of 
those tests (UTC), and the length of time the bubble curtain was on the 
seafloor prior to the associated foundation installation, and 
confirmation that the bubble curtain was in full contact with the 
seafloor throughout the use. Additionally, the report must include any 
important observations regarding performance (before, during, and after 
pile installation), such as any observed weak areas of low pressure, 
corrective measures conducted to ensure the system is working 
sufficiently. The report may also include any relevant video and/or 
photographs of the bubble

[[Page 45400]]

curtain(s) operating during all pile driving;
    (16) Sunrise Wind must provide NMFS Office of Protected Resources 
with notification of planned UXO/MEC detonation as soon as possible but 
at least 48 hours prior to the planned detonation unless this 48-hour 
notification would create delays to the detonation that would result in 
imminent risk of human life or safety. This notification must include 
the coordinates of the planned detonation, the estimated charge size, 
and any other information available on the characteristics of the UXO/
MEC.
    (17) Sunrise Wind must submit situational reports if specific 
circumstances occur, including but not limited to the following:
    (i) All instances wherein an exemption is taken must be reported to 
the NMFS Office of Protected Resources within 24 hours.
    (ii) If a North Atlantic right whale is sighted with no visible 
injuries or entanglement by PSOs or project personnel, Sunrise Wind 
must immediately report the sighting to NMFS; if immediate reporting is 
not possible, the report must be submitted as soon as possible but no 
later than 24 hours after the initial sighting. All North Atlantic 
right whale acoustic detections within a 24-hour period should be 
collated into one spreadsheet and reported to NMFS as soon as possible 
but no later than 24 hours. To report sightings and acoustic 
detections, download and complete the Real-Time North Atlantic Right 
Whale Reporting Template spreadsheet found at: https://www.fisheries.noaa.gov/resource/document/template-datasheet-real-time-north-atlantic-right-whale-acoustic-and-visual. Save the spreadsheet as 
a .csv file and email it to NMFS NEFSC-PSD ([email protected]), 
NMFS GARFO-PRD ([email protected]), and NMFS Office of 
Protected Resources ([email protected]). If the 
sighting is in the Southeast (North Carolina through Florida), report 
via the template and to the Southeast Hotline 877-WHALE-HELP (877-942-
5343) with the observation information provided below (PAM detections 
are not reported to the Hotline). If unable to report a sighting 
through the spreadsheet within 24 hours, call the relevant regional 
hotline (Greater Atlantic Region [Maine through Virginia] Hotline 866-
755-6622; Southeast Hotline 877-WHALE-HELP) with the observation 
information provided below (PAM detections are not reported to the 
Hotline). The visual sighting report must, at minimum, include the 
following information: the time (note time format), date (MM/DD/YYYY), 
location (latitude/longitude in decimal degrees; coordinate system 
used) of the observation, number of whales, animal description/
certainty of observation (follow up with photos/video if taken), 
reporter's contact information, and lease area number/project name, 
PSO/personnel name who made the observation, and PSO provider company 
(if applicable) (PAM detections are not reported to the Hotline). If 
unable to report via the template or the regional hotline, enter the 
sighting via the WhaleAlert app (https://www.whalealert.org/). If this 
is not possible, report the sighting to the U.S. Coast Guard via 
channel 16. The report to the Coast Guard must include the same 
information as would be reported to the Hotline. PAM detections are not 
reported to WhaleAlert or the U.S. Coast Guard;
    (iii) If a non-NARW large whale is observed, report the sighting 
via WhaleAlert app (https://www.whalealert.org/) as soon as possible 
but within 24 hours;
    (18) In the event that personnel involved in the Project discover a 
stranded, entangled, injured, or dead marine mammal, the Sunrise Wind 
must immediately report the observation to NMFS. If in the Greater 
Atlantic Region (Maine through Virginia), call the NMFS Greater 
Atlantic Stranding Hotline (866-755-6622), and if in the Southeast 
Region (North Carolina through Florida) call the NMFS Southeast 
Stranding Hotline (877-WHALE-HELP (877-942-5343)). Separately, the LOA 
Holder must report, within 24 hours, the incident to NMFS Office of 
Protected Resources ([email protected]) and, if in the 
Greater Atlantic Region to the NMFS Greater Atlantic Regional Fisheries 
Office (GARFO; [email protected]) or if in the 
Southeast Region, to the NMFS Southeast Regional Office (SERO; 
[email protected]). Note, the stranding hotline may request the 
report be sent to the local stranding network response team. The report 
must include contact information (e.g., name, phone number, etc.); 
time, date, and location (i.e., specify coordinate system) 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); 
photographs or video footage of the animal(s) (if available); and 
general circumstances under which the animal was discovered;
    (19) In the event of a suspected or confirmed vessel strike of a 
marine mammal by any vessel associated with the Project or other means 
by which Project activities caused a non-auditory injury or death of a 
marine mammal, Sunrise Wind must immediately report the incident to 
NMFS. If in the Greater Atlantic Region (Maine through Virginia), call 
the NMFS Greater Atlantic Stranding Hotline (866-755-6622), and if in 
the Southeast Region (North Carolina through Florida) call the NMFS 
Southeast Stranding Hotline (877-WHALE-HELP (877-942-5343)). 
Separately, the Sunrise Wind must immediately report the incident to 
NMFS Office of Protected Resources ([email protected]) 
and, if in the Greater Atlantic Region to the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO; [email protected]) or 
if in the Southeast Region, to the NMFS Southeast Regional Office 
(SERO; [email protected]). The report must include time, date, 
and location (i.e., specify coordinate system)) of the incident; 
species identification (if known) or description of the animal(s) 
involved (i.e., identifiable features including animal color, presence 
of dorsal fin, body shape and size, etc.); vessel strike reporter 
information (name, affiliation, email for person completing the 
report); vessel strike witness (if different than reporter) information 
(e.g., name, affiliation, phone number, platform for person witnessing 
the event, etc.); vessel name and/or MMSI number; 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); part of vessel that 
struck marine mammal (if known); vessel damage notes; status of all 
sound sources in use at the time of the strike; if the marine mammal 
was seen before the strike event; description of behavior of the marine 
mammal before the strike event (if seen) and behavior immediately 
following the strike; 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, etc.) immediately preceding the strike; estimated (or 
actual, if known) size and length of marine mammal that was struck; if 
available, description of the presence and behavior of any other marine 
mammals immediately preceding the

[[Page 45401]]

strike; other animal-specific details if known (e.g., length, sex, age 
class); behavior or estimated fate of the marine mammal post-strike 
(e.g., dead, injured but alive, injured and moving, external visible 
wounds (linear wounds, propellor wounds, non-cutting blunt-force trauma 
wounds), blood or tissue observed in the water, status unknown, 
disappeared); to the extent practicable, any photographs or video 
footage of the marine mammal(s); and, any additional notes the witness 
may have from the interaction. For any numerical values provided (i.e., 
location, animal length, vessel length, etc.), please provide if values 
are actual or estimated. The Sunrise Wind must immediately cease 
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(s). NMFS Office of Protected Resources may impose additional 
measures to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. Sunrise Wind may not resume their activities 
until notified by NMFS Office of Protected Resources; and
    (20) Sunrise Wind must report any lost gear associated with the 
fishery surveys 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.


Sec.  217.316  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, Sunrise Wind must apply for and obtain an LOA; (b) An LOA, 
unless suspended or revoked, may be effective for a period of time not 
to exceed the effective period of this subpart;
    (c) If an LOA expires prior to the expiration date of these 
regulations, Sunrise Wind may apply for and obtain a renewal of the 
LOA; and
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, Sunrise Wind 
must apply for and obtain a modification of the LOA as described in 
Sec.  217.317.
    (e) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under this subpart. (g) Notice of issuance or denial 
of an LOA must be published in the Federal Register within 30 days of a 
determination.


Sec.  217.317  Modifications of Letter of Authorization.

    (a) A LOA issued under Sec. Sec.  216.106 and 217.316 of this 
section for the activities identified in Sec.  217.310(c) shall be 
modified upon request by Sunrise Wind, 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, or 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 
measures (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section), the LOA shall be 
modified, provided that:
    (1) NMFS 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) A LOA issued under Sec.  216.106 of this chapter and Sec.  
217.316 for the activities identified in Sec.  217.310(c) may be 
modified by NMFS under the circumstances in paragraphs (c)(1) and (2) 
of this section:
    (1) Through adaptive management, NMFS may modify (including remove, 
revise, or add to) the existing mitigation, monitoring, or reporting 
measures after consulting with Sunrise Wind regarding the 
practicability of the modifications, if doing so creates a reasonable 
likelihood of more effectively accomplishing the goals of the 
mitigation and monitoring measures set forth in this subpart.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA 
include, but are not limited to:
    (A) Results from Sunrise Wind's monitoring;
    (B) Results from other marine mammals and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by 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; and
    (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.  216.106 of this 
chapter and Sec.  217.316, a 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.  217.318--217.319  [Reserved]

[FR Doc. 2024-09902 Filed 5-21-24; 8:45 am]
BILLING CODE 3510-22-P