Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the New England Wind Project, Offshore Massachusetts, 52222-52321 [2024-12085]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 120 (Friday, June 21, 2024)]
[Rules and Regulations]
[Pages 52222-52321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12085]



[[Page 52221]]

Vol. 89

Friday,

No. 120

June 21, 2024

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the New England Wind Project, Offshore 
Massachusetts; Final Rule

Federal Register / Vol. 89 , No. 120 / Friday, June 21, 2024 / Rules 
and Regulations

[[Page 52222]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240524-0146]
RIN 0648-BL96


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the New England Wind Project, 
Offshore Massachusetts

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

ACTION: Final rule; notification of issuance of letter of 
authorization.

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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 by 
Avangrid Renewables, LLC, (Avangrid), the parent company of the 
original applicant, Park City Wind, LLC (Park City Wind), during the 
construction of the New England Wind Project (the Project), an offshore 
wind energy project, developed in two phases, known as Park City Wind 
(phase 1) and Commonwealth Wind (phase 2), in Federal and State waters 
off of Massachusetts, 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 Areas 
(OCS-A 0534 and OCS-A 0561) and the southwest (SW) portion of Lease 
Area OCS-A 0501 (collectively referred to as the Lease Area), and along 
an export cable routes to sea-to-shore transition points (collectively, 
the Project Area), over the course of 5 years (March 27, 2025, through 
March 26, 2030). The proposed rule for this action concerned only Lease 
Areas OCS-A 0534 and the SW portion of Lease Area OCS-A 0501. However, 
after publication of the proposed rule, Lease Area OCS-A 0534 was 
segregated into two portions: OCS-A 0534 and OCS-A 0561. Phase 1 
remained with Park City Wind (OCS-A 0534) while phase 2 (OCS-A 0561) 
was assigned to a sister company named Commonwealth Wind, LLC 
(subsidiary of Avangrid). As a result of this, Park City Wind requested 
that the Letter of Authorization (LOA), if issued, be issued to 
Avangrid, who would oversee the construction of the both phases of the 
Project by its two subsidiaries. These regulations, which allow for the 
issuance of a 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 March 27, 2025, through March 26, 
2030.

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

SUPPLEMENTARY INFORMATION:

Availability

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

Purpose and Need for Regulatory Action

    This 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 the applicant to 
incidentally take a small number of marine mammals from 39 species of 
marine mammals. After reviewing the request and making the required 
findings, NMFS could authorize the take, by harassment only, of 38 
species, representing 38 stocks (19 species by Level A harassment and 
all 38 species by Level B harassment) incidental to the applicant's 5 
years of construction activities. The applicant did not request and 
NMFS neither anticipates nor allows take by serious injury or mortality 
incidental to the specified activities in this final rulemaking.

Legal Authority for the Final Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated (when applicable), and public notice and an opportunity for 
public comment are provided.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). If such findings are made, NMFS must prescribe the 
permissible methods of taking, ``other means of effecting the least 
practicable adverse impact'' on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
the species or stocks for taking for certain subsistence uses (referred 
to as ``mitigation''); and requirements pertaining to the monitoring 
and reporting of such takings.
    As noted above, the applicant did not request and NMFS neither 
anticipates nor would allow take by serious injury or mortality 
incidental to the specified activities in this final rulemaking. 
Relevant definitions of MMPA statutory and regulatory terms are 
included below:
     Citizen--individual U.S. citizens or any corporation or 
similar entity if it is organized under the laws of the United States 
or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 
216.103);
     Take--to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362);
     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; 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).

[[Page 52223]]

    Section 101(a)(5)(A) of the MMPA and the implementing regulations 
at 50 CFR part 216, subpart I, provide the legal basis for proposing 
and, if appropriate, issuing this rule containing 5-year regulations 
and associated LOA. This final rule also establishes required 
mitigation, monitoring, and reporting requirements for the in-water 
specified activities.

Summary of Major Provisions Within the Final Rule

    The major provisions within this final rule include:
     Allowing NMFS to authorize, under a LOA, the take of small 
numbers of marine mammals by Level A harassment and/or Level B 
harassment (50 CFR 217.322) incidental to the Project and prohibiting 
take of such species or stocks in any manner not permitted (50 CFR 
217.323) (e.g., mortality or serious injury);
     Establishing a seasonal moratorium on impact pile driving 
and drilling during January 1 through April 30, annually, as well as 
avoiding impact pile driving and drilling in December in order to 
minimize impacts to North Atlantic right whales (Eubalaena glacialis). 
Impact pile driving and drilling must not be planned in December; 
however, it may then only occur if necessary to complete the Project 
within a given year and with prior approval by NMFS (e.g., as a result 
of unforeseen circumstances such as unanticipated weather delays, 
unexpected technical difficulties). LOA Holder must notify NMFS in 
writing by September 1 of that year that pile driving or drilling 
cannot be avoided and circumstances are expected to necessitate pile 
driving or drilling in December;
     Establishing a seasonal moratorium on vibratory pile 
driving (i.e., vibratory setting of piles) during December 1 through 
May 31, annually, to minimize impacts to North Atlantic right whales 
(Eubalaena glacialis);
     Establishing a seasonal moratorium on the detonation of 
unexploded ordnance or munitions and explosives of concern (UXO/MEC) 
from December 1 through May 31, annually. UXO/MEC detonation must not 
be planned for December or May in order to minimize impacts to North 
Atlantic right whales (Eubalaena glacialis); however, UXO/MEC 
detonation may occur in December or May with NMFS' approval on a case-
by-case basis only.
     Requirements for UXO/MEC detonations to only occur if all 
other means of removal are impracticable (i.e., As Low As Reasonably 
Practicable (ALARP) risk mitigation procedure)), conducting UXO/MEC 
detonations during daylight hours only, and limiting detonations to one 
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;
     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 North Atlantic right whale is observed at any 
distance by PSOs or acoustically detected within certain distances;
     Establishing minimum visibility and PAM monitoring zones 
during foundation installation activities (i.e., impact pile driving, 
vibratory pile driving, and drilling);
     Requiring use of at least two noise attenuation devices 
during all foundation 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) requirements 
during foundation installation and UXO/MEC detonations to measure in 
situ noise levels for comparison against the modeled results.
     Requiring SFV during the operational phase of the Project;
     Requiring soft-start 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 removing gear from the water if marine mammals are 
considered at-risk or are 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 North Atlantic right whale 
sighting networks, Channel 16, and PAM data, as well as reporting any 
sightings to the NMFS or sighting network.
    Through adaptive management, as described in the provisions 
established in these regulations, NMFS Office of Protected Resources 
may modify (e.g., delete, 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 or the authorized 
take is having, or may have, more than a negligible impact on the 
concerned species or stock (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 at https://www.permits.performance.gov/permitting-project/new-england-wind.

Summary of Request

    On December 1, 2021, the original applicant, Park City Wind, a 
limited liability company registered in the State of Delaware and 
wholly owned subsidiary of Avangrid submitted a request for the 
promulgation of regulations and issuance of an associated 5-year LOA to 
take, by harassment only, marine mammals incidental to construction 
activities associated with implementation of the New England Wind 
Project (hereafter ``Project'') offshore of Massachusetts in the BOEM 
Lease Area OCS-A 0534 and the possible use of the SW portion of Lease 
Area OCS-A 0501. The request was for the incidental, but not 
intentional, taking of a small number of 39 marine mammal species by 
Level B harassment (for all species or stocks) and by Level A 
harassment (for 19 species or stocks). Park City Wind did

[[Page 52224]]

not request, and NMFS neither expects nor would allow under this rule, 
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 Park City Wind and NMFS, the applicant 
submitted a final revised application on July 13, 2022. NMFS deemed it 
adequate and complete on July 20, 2022. This final application is 
available on NMFS' website at https://www.fisheries.noaa.gov/protected-resource-regulations.
    On August 22, 2022, NMFS published a notice of receipt (NOR) of the 
adequate and complete application in the Federal Register (87 FR 
51345), requesting public comments and information during a 30-day 
public comment period. During the NOR public comment period, NMFS 
received comment letters from one private citizen and one non-
governmental organization (ALLCO Renewable Energy Limited). NMFS 
reviewed all submitted material and took the material into 
consideration during the drafting of the proposed rule.
    In January 2023 and again in March 2023, Park City Wind submitted 
memos to NMFS detailing updates and changes to their ITA application 
(``Update Application''). These memos updated the density models using 
the 2022 Roberts et al. density models, project foundation installation 
and potential UXO/MEC detonation schedules, vibratory pile driving 
(i.e., vibratory setting of piles) assessment, and mitigation of 
drilling activity. In addition, the applicant detailed development of 
their fisheries monitoring program and associated mitigation measures. 
In a May 2023 memo, Park City Wind submitted corrected take estimate 
amounts for foundation installation activities and total take requested 
across all activities. These updates were reflected in the proposed 
rule. These memos are available on the NMFS website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind.
    On June 8, 2023, NMFS published a proposed rule for the Project in 
the Federal Register (88 FR 37606). In the proposed rule, NMFS 
synthesized all of the information provided by the applicant, all best 
available scientific information and literature relevant to the 
proposed project, made preliminary small numbers and negligible impact 
determinations, and 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. The public comment period on the proposed rule was open for 
30 days from June 8, 2023 through July 10, 2023. A summary of public 
comments received during this 30-day period are described in the 
Comments and Responses section. The public comments are available to be 
viewed on the Federal e-Rulemaking Portal at https://www.regulations.gov.
    In January 2024, Park City Wind submitted a final draft of the new 
modeling and associated acoustic ranges, exposure estimates, and take 
estimates. Within these memos, the applicant revised the model(s) used 
and model assumptions for foundation installation activities and 
updated the acoustic ranges, exposure ranges, exposure estimates, take 
estimates, and amount of requested take as a result. The model changes 
are detailed in the Modeling and Take Estimates section in this final 
rule. NMFS accepted the updated modeling and has reflected the changes 
to the distance to thresholds, exposure estimates, and take estimates 
within the final rule. A description of these changes can be found 
below in the Modeling and Take Estimates section. This January 2024 
Application Update is on NMFS website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind.
    On May 6, 2024, Park City Wind notified NMFS that it had requested 
that BOEM segregate a portion of lease area OCS-A-0534, which would 
then be assigned to another subsidiary of Avangrid, Commonwealth Wind, 
LLC, as lease area OCS-A 0561. Park City Wind requested to NMFS that 
the incidental take regulation (ITR) governing take of marine mammals 
incidental to activities associated with both phases of the Project and 
the associated LOA (if issued by NMFS) be issued to Park City Wind's 
parent company, Avangrid, a limited liability company registered in the 
State of Oregon, who would oversee phase 1 (constructed and operated by 
Park City Wind) and phase 2 (constructed and operated by Commonwealth 
Wind) of the New England Wind Project. The lease segregation, completed 
by BOEM on May 15, 2024, did not alter the geographic location or size 
of the area in which the project would be built, nor did the applicant 
request any changes to the construction schedule, planned activities, 
or take. In short, no substantive changes to the Project were 
requested. As a result, where appropriate, Avangrid, owner of Park City 
Wind, has henceforth been incorporated as the applicant or LOA Holder 
throughout this final rule.
    NMFS previously issued one Incidental Harassment Authorization 
(IHA) to Park City Wind for the taking of small numbers of marine 
mammals incidental to marine site characterization surveys, using HRG 
of the Project's phase 1 (Park City Wind) in the BOEM Lease Area OCS-A 
0534 (87 FR 44087, July 7, 2022); phase 2 was not part of this 
authorization (Commonwealth Wind). However, no work occurred under this 
initial IHA and Park City Wind requested a reissuance of the IHA with 
new effective dates. NMFS reissued the IHA (88 FR 88892, December 26, 
2023) with the new effective dates of March 1, 2024, through February 
28, 2025. NMFS has also previously issued an IHA to Avangrid, owner of 
Park City Wind, LLC, to take small numbers of marine mammals incidental 
to HRG surveys in BOEM Lease Area (OCS-A 0508) off the coasts of North 
Carolina and Virginia (84 FR 31032, June 28, 2019). To date, Park City 
Wind and Avangrid have complied with all IHA requirements (e.g., 
mitigation, monitoring, and reporting). Applicable monitoring results 
may be found in the Estimated Take of Marine Mammals section. If 
available, the full monitoring reports can be found on NMFS' website at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations (87 FR 46921, 
August 1, 2022) to further reduce the likelihood of mortalities and 
serious injuries to endangered right whales from vessel collisions, 
which are a leading cause of the species' decline and a primary factor 
in an ongoing Unusual Mortality Event (UME). Should a final vessel 
speed rule be issued and become effective during the effective period 
of this ITR--or any other MMPA incidental take authorization (ITA)--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 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

[[Page 52225]]

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 Avangrid if 
the measures in the speed rule were to supersede any of the measures in 
the MMPA authorization such that they were no longer required.

Description of the Specified Activity

Overview

    Avangrid plans to construct and operate two offshore wind projects 
within OCS-A 0534 and OCS-A 0561: Park City Wind (phase 1, 0534) and 
Commonwealth Wind (phase 2, 0561) (collectively called New England 
Wind; hereinafter referred to as ``Project''). The Project will occupy 
all of Lease Area OCS-A 0534, OCS-A 0561, and potentially a portion of 
Lease Area OCS-A 0501 in the event that Vineyard Wind 1 does not 
develop spare or extra positions included in Lease Area OCS-A 0501. If 
Vineyard Wind 1 does not develop spare or extra positions in Lease Area 
OCS-A 0501, those positions would be assigned to Lease Area OCS-A 0534.
    The Project will consist of several different types of permanent 
offshore infrastructure, including wind turbine generators (WTGs) and 
associated foundations, electrical service platforms (ESPs) and their 
foundations, inter-array cables, offshore export cables, and scour 
protection. Specifically, activities to construct the Project include 
the installation of 41-62 WTGs and 1-2 ESPs in phase 1 by impact and 
vibratory pile driving and, in the event of an obstruction, drilling. 
Phase 2 depends upon the final footprint of phase 1. Phase 2 is 
expected to include the installation of 64-88 WTGs and 1-3 ESP 
positions by impact and vibratory pile driving and, in the event of an 
obstruction, drilling. In total, up to 129 WTGs and 2-5 ESPs may be 
constructed at a maximum of 130 positions (2 positions may potentially 
have co-located ESPs (i.e., two foundations installed at one grid 
position), resulting in 132 foundations). Additional activities will 
include cable installation, site preparation activities (e.g., 
dredging), HRG surveys, the potential detonations of up to 10 UXO/MEC, 
and conducting several types of fishery and ecological monitoring 
surveys. Multiple vessels will transit within the Project Area and 
between ports and the wind farm to perform the work and transport crew, 
supplies, and materials. All offshore cables will connect to onshore 
export cables, substations, and grid connections in Barnstable County, 
Massachusetts. Marine mammals exposed to elevated noise levels during 
pile driving, drilling, UXO/MEC detonations, or site characterization 
surveys may be taken by Level A harassment and/or Level B harassment, 
depending on the specified activity. A detailed description of the 
construction project is provided in the proposed rule as published in 
the Federal Register (88 FR 37606, June 8, 2023).

Dates and Duration

    Avangrid anticipates activities resulting in harassment to marine 
mammals occurring throughout all 5 years of the final rule (table 1). 
Offshore Project activities are expected to begin in March 2025, after 
issuance of the 5-year LOA, and continue through March 2030. Avangrid 
anticipates the following construction schedule over the 5-year period. 
Avangrid has noted that these are the best and conservative estimates 
for activity durations, but that the schedule may shift due to weather, 
mechanical, or other related delays. Additional information on dates 
and activity-specific durations can be found in the proposed rule and 
are not repeated here.

     Table 1--Activity Schedule To Construct and Operate the Project
------------------------------------------------------------------------
        Project activity            Expected timing    Expected duration
------------------------------------------------------------------------
HRG Surveys.....................  Q1 2025-Q4 2029...  Any time of the
                                                       year, up to 25
                                                       days per year.
Scour Protection Pre- or Post-    Q1 2025-Q4 2029...  Any time of the
 Installation.                                         year.
WTG and ESP Foundation            Q2-Q4 2026 and      Up to 8 months per
 Installation, Schedule A.         2027 \1\.           year.
WTG and ESP Foundation            Q2-Q4 2026, 2027,   Up to 8 months per
 Installation, Schedule B.         and 2028 \1\.       year.
Horizontal Directional Drilling   Q4 2025-Q2 2026...  Up to 150 days.
 at Cable Landfall Sites.
UXO/MEC Detonations.............  Q2-Q4 2025 and      Up to 6 days in
                                   2026.               2025 and 4 days
                                                       in 2026. No more
                                                       than 10 days
                                                       total.
Inter-array Cable Installation..  Q3-Q4 2026 and Q2   Phase 1: 5 months;
                                   2027-Q2 2028.       Phase 2: 10
                                                       months.
Export Cable Installation and     Q2 2026-Q2 2028...  Phase 1: 8-9
 Termination.                                          months; Phase 2:
                                                       13-17 months.
Fishery Monitoring Surveys......  Q1 2025-Q4 2029...  Any time of year.
                                 ---------------------------------------
Turbine Operation...............  Initial turbines operational 2027, all
                                   turbines operational by 2028.
------------------------------------------------------------------------
Note: Project activities are anticipated to start no earlier than Q1
  2025. Q1 = January through March; Q2 = April through June; Q3 = July
  through September; Q4 = October through December. The Project is
  divided into two phases: Park City Wind (phase 1) and Commonwealth
  Wind (phase 2).
\1\ Foundation installation pile driving and drilling would be limited
  to May 1-December 31, annually; however, impact pile driving and
  drilling in December will not be planned but may occur due to
  unforeseen circumstances (e.g., unanticipated extended weather delays,
  unexpected technical difficulties) and with NMFS approval. Vibratory
  pile driving (e.g., vibratory setting of piles) must not occur
  December 1-May 31, annually.

Specified Geographical Region

    A detailed description of the Specified Geographical Region, 
identified as the Mid-Atlantic Bight, is provided in the proposed rule 
(88 FR 37606, June 8, 2023). Since the proposed rule was published, no 
changes have been made to the Specified Geographical Region. This final 
rule provides clarity on the boundaries of the Mid-Atlantic Bight, 
which spans from Cape Hatteras, North Carolina to Cape Cod, 
Massachusetts and extends into the western Atlantic to the 100-m 
isobath. All of Avangrid's specified activities (i.e., pile driving and 
drilling of WTG and ESP foundations; number of possible UXO/MEC 
detonations (n=10); placement of scour protection; trenching, laying, 
and burial activities associated with the installation of the export 
cable route and inter-array cables; HRG site characterization surveys; 
and WTG operation) are concentrated in the Lease Area and cable 
corridor offshore Massachusetts. Avangrid would also concentrate vessel 
use within this area;

[[Page 52226]]

however, some limited vessel movement may occur outside this area.
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Comments and Responses

    NMFS published a proposed rule in the Federal Register on June 8, 
2023 (88 FR 37606) for a 30-day public comment period. The proposed 
rule described, in detail, the specified activities, the specified 
geographical region of the specified activities, the marine mammal 
species that may be affected by these activities, and the anticipated 
effects on marine mammals. In the proposed rule, we requested that 
interested persons submit relevant information, suggestions, and 
comments on Park City Wind's (now Avangrid's) request for the 
promulgation of regulations and issuance of an associated LOA described 
therein, our estimated take analyses, the

[[Page 52227]]

preliminary determinations, and the proposed regulations.
    NMFS received 41 comment submissions, including comments from the 
Marine Mammal Commission (Commission), several non-governmental 
organizations, and private citizens, all of which are available for 
review on https://www.regulations.gov. Some 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) and are not described herein or discussed 
further. Non-governmental organizations included: Long Island 
Commercial Fishing Association, Responsible Offshore Development 
Alliance, and Green Oceans. These letters, and the Commission's, 
contained substantive information that NMFS considered 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 are described below, along with 
NMFS' responses.

Modeling and Take Estimates

    Comment 1: The Commission has stated that, due to uncertainty in 
how NMFS will be addressing their previously submitted comments for 
other final offshore wind rulemakings, they are not providing ``an 
exhaustive letter regarding similar issues'' for the proposed action. 
They have stated that, in lieu of this, they incorporate by reference 
all previously submitted comment letters for past proposed rules (i.e., 
Empire Wind, Dominion Energy Virginia, Sunrise Wind, Revolution Wind, 
Ocean Wind 1, South Fork Wind) and that NMFS should specifically review 
these previously submitted letters (e.g., Sunrise Wind (88 FR 8996, 
February 10, 2023), Revolution Wind (87 FR 79072, December 23, 2022), 
and Ocean Wind 1 (87 FR 64868, October 26, 2022) and incorporate, where 
applicable, relevant information in the context of the Project. They 
specifically noted that these general concerns could include 
``underestimated numbers of Level A and B harassment takes (including 
failing to round up to group size), incomplete SFV measurement 
requirements, insufficient mitigation and monitoring measures, errors 
and omissions in the preamble to and the proposed rule, and the general 
issue of quality control and quality assurance in NMFS's preparation of 
proposed incidental take authorizations.''
    Response: NMFS acknowledges the receipt of a comment letter on the 
proposed Project by the Commission, as well as receipt of comment 
letters from the Commission for the other referenced proposed projects. 
We appreciate that, in the past, the Commission has provided very 
specific and detailed comments and suggestions on NMFS' actions, as a 
collaborative effort to improve both the ITAs themselves as well as the 
conservation benefits for NMFS' trust species. Because the Commission 
did not provide specific comments on the proposed rule for the Project, 
we cannot address any specific concerns. However, we can address 
general themes of concern raised in previous letters, and, inasmuch as 
another specific comment is applicable here, we refer the Commission 
back to our previous responses.
    Overall, the Commission's letters raised concerns over concern 
underestimated Level A and B harassment zones and numbers of takes, 
incomplete SFV measurement requirements, insufficient mitigation and 
monitoring measures, errors and omissions in the proposed rule and its 
preamble, and the general issue of quality control and quality 
assurance in NMFS's preparation of proposed ITAs. With respect to 
mitigation, monitoring and reporting requirements, we have thoroughly 
addressed the Commission's previous concerns and have updated final 
rules, including this one, accordingly. Lastly, any ``omissions'' and 
``general issues of quality control and quality assurance'' from one 
action are less likely to be present in another action as updates are 
carried through across actions (although NMFS does not agree that every 
example previously raised by the Commission was, in fact, an error).
    Comment 2: Commenters recommend NMFS 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, 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), 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/MEC detonations and authorize Level A 
and B harassment takes, including behavior takes, that could result 
from UXO/MEC detonations, and 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-Massachusetts 
WEA). Other commenters had similar comments. Commenter(s) also 
suggested that the numbers of takes, particularly with respect to the 
North Atlantic right whale, rely on mitigation methods that remain 
unproven.
    Response: NMFS disagrees 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 
commenter 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 (although 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 10 dB of attenuation can be 
reliably achieved using noise attenuation systems such as a double 
bubble curtain. The commenter 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.

[[Page 52228]]

    NMFS recognizes that the key to effective mitigation is the ability 
to detect marine mammals to trigger such mitigation. Avangrid 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 three PSOs on the pile driving 
platform and dedicated PSOs vessel(s) and PAM.
    NMFS agrees 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) 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. 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: Commenter(s) 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. 
Commenter(s) stated that vessel noise is not included in the effects 
and that it should be included in calculations for harassment zones (as 
a continuous noise source) and as a source of take. For these reasons, 
commenter(s) suggested the proposed rule underestimates the takes by 
Level B harassment 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 North 
Atlantic right whales 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 takes 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 may be 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

[[Page 52229]]

responses depend on the context in which the animal receives the sound, 
including an animal's behavioral mode when it hears sounds (e.g., 
feeding, resting, or migrating), prior experience, and biological 
factors (e.g., age and sex). Other contextual factors, such as signal 
characteristics, distance from the source, and signal to noise ratio, 
may also help determine response to a given received level of sound. 
Therefore, levels at which responses occur are not necessarily 
consistent and can be difficult to predict (Southall et al., 2007; 
Ellison et al., 2012; Southall et al., 2021). 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. 
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; 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.
    NMFS disagrees that vessel noise would result in take and, 
therefore, be necessary to include in the take calculations in this 
final rule. Vessels produce low-frequency noise, primarily through 
propeller cavitation, with main energy in the 5-300 hertz (Hz) 
frequency range. Source levels range from about 140 to 195 decibels 
(dB) referenced to 1 (re 1) [mu]Pa (micropascal) at 1 m (National 
Research Council (NRC), 2003; Hildebrand, 2009), depending on factors 
such as vessel type, load, and speed, and vessel 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). As discussed in 
the Negligible Impact Analysis and Determination section (specifically 
the Auditory Masking or Communication Impairment section) of both the 
proposed and final rule, the level of masking that could occur from the 
specified activities will have a negligible impact on marine mammals, 
including North Atlantic right whales. Inherent in the concept of 
masking is the fact that the potential for the effect is only present 
during the times that the animal and the sound source are in close 
enough proximity for the effect to occur. In addition, this time period 
would need to coincide with a time that the animal was utilizing sounds 
at the masked frequency). As our analysis (both quantitative and 
qualitative components) indicates, because of the relative movement of 
whales and vessels, as well as the stationary nature of a majority of 
the activities, we do not expect these exposures with the potential for 
masking to be of a long duration within a given day. Further, because 
of the relatively low density of North Atlantic right whales during 
months when most of project activities would be occurring (i.e., May 
through November in most cases), and the relatively large area over 
which the vessels will travel and where the activities will occur, we 
do not expect any individual North Atlantic right whales to be exposed 
to potentially masking levels from these surveys for more than a few 
days in a year. Furthermore, as many of the activities are occurring in 
clusters and specific areas rather than sporadically dispersed in the 
Project Area (i.e., foundation installation all occurs in the same 
general area, nearshore cable installation activities occur in 
relatively similar and nearby areas), animals are likely to temporarily 
avoid these locations during periods where activities are occurring but 
are expected to return once activities have ceased.
    As noted above, any masking effects of the project's activities are 
expected to be limited in duration, if present. For HRG surveys, given 
the likelihood of significantly reduced received levels beyond short 
distances from the transiting survey vessel, the short duration of 
potential exposure, the lower likelihood of extensive additional 
contributors to background noise offshore and within these short 
exposure periods, and the fact that the frequency of HRG signals are 
primarily above those used in social communication or for detection of 
other important clues, we believe that the incremental addition of the 
survey vessel is unlikely to result in more than minor and short-term 
masking effects. For pile driving and drilling, and especially 
foundation installation, masking effects are more likely given the 
larger zones and longer durations, and animals that approach the source 
could experience temporary masking of some lower frequency cues. 
However, any such effects would be localized to the areas around these 
stationary activities, which means that whales transiting through the 
area could adjust their transit away from the construction location and 
return once the activity has completed. As described in the ``Potential 
Effects of the Activities on Marine Mammals'' section of the proposed 
rule, NMFS acknowledges the noise contributions of vessels to the 
soundscape and the potential for larger vessels such as commercial 
shipping vessels, especially, to mask mysticete communication. For the 
activity as a whole, including the operation of supporting vessels for 
Avangrid's activities, any masking that might potentially occur would 
likely be incurred by the same animals predicted to be exposed above 
the behavioral harassment threshold, and thereby accounted for in the 
analysis. NMFS notes that the commenter did not provide additional 
scientific information for NMFS to consider to support its concern.
    Comment 4: Commenter(s) recommended that NMFS should consider the 
best available data regarding North Atlantic right whale 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 
ITRs be established based on the best scientific evidence available. 
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 scientific evidence available 
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 North Atlantic right whale 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 
scientific evidence available in the analysis of this final rule. This 
new stock abundance estimate, which is based on the analysis from Pace 
et al. (2017) and subsequent

[[Page 52230]]

refinements found in Pace (2021), provides the best scientific evidence 
available, and in this case, the most recent estimate, including 
improvements to NMFS's right whale abundance model. NMFS notes this 
estimate aligns with the 2022 North Atlantic Right Whale Report Card 
(Pettis et al., 2022) estimate (also 340) based on sighting data 
through August 2022 but, as described above, the SARs are peer reviewed 
by other scientific review groups prior to being finalized and 
published and the Report Card is published independently by Consortium 
members without undertaking this peer review process. Based on this, 
NMFS has considered all relevant information regarding North Atlantic 
right whale, including the information cited by the commenters. 
However, NMFS has relied on the draft 2023 SAR in this final rule as it 
reflects the best scientific evidence available.
    We further note that this change in abundance estimate does not 
change the estimated take of North Atlantic right whales or authorized 
take numbers, nor affect our ability to make the required findings 
under the MMPA for Avangrid's construction activities.
    NMFS evaluates the models used by applicants to support take 
estimates to ensure that they are methodologically sound and 
incorporate the best science available. NMFS also requires use of the 
Roberts et al. (2016, 2023) density data and SARs abundance estimates 
for all species, both of which represent the best scientific evidence 
available regarding marine mammal occurrence.
    Comment 5: Commenter(s) stated that Level A harassment in the form 
of a Permanent Threshold Shift (PTS) would result in deafness and lead 
to mortality. It was also asserted that Level B harassment in the form 
of a TTS is temporary deafness which could result in an increased risk 
of vessel strike. Lastly, that NMFS has refused to acknowledge the lack 
of available data on low frequency cetacean hearing or potential 
behavioral impacts from noise on low frequency cetacean species.
    Response: Neither the proposed rule or this final rule allow 
mortality or serious injury of marine mammals to be authorized. The 
best scientific evidence available 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 defines a 
threshold shift as a change, usually an increase, in the threshold of 
audibility at a specified frequency or portion of an individual's 
hearing range above a previously established reference level expressed 
in decibels (NMFS, 2018). Threshold shifts can be permanent (PTS), in 
which case there is an irreversible increase in the threshold of 
audibility at a specified frequency or portion of an individual's 
hearing range or temporary, in which there is reversible increase in 
the threshold of audibility at a specified frequency or portion of an 
individual's hearing range and the animal's hearing threshold would 
fully recover over time (Southall et al., 2019a). When PTS occurs, 
there can be physical damage to the sound receptors in the ear (i.e., 
tissue damage) whereas TTS represents primarily tissue fatigue and is 
reversible (Henderson et al., 2008). In addition, other investigators 
have suggested that TTS is within the normal bounds of physiological 
variability and tolerance and does not represent physical injury (e.g., 
Ward, 1997; Southall et al., 2019a). Therefore, NMFS does not consider 
TTS to constitute auditory injury or deafness as it is a temporary form 
of hearing impairment. Repeated sound exposure that leads to TTS could 
cause PTS. For this project, as stated in the proposed rule, no more 
than a small degree of PTS is expected to be associated with any of the 
incurred Level A harassment, given it is unlikely that animals would 
stay in the close vicinity of a source for a duration long enough to 
produce more than a small degree of PTS. PTS would consist of minor 
degradation of hearing capabilities occurring predominantly at 
frequencies one-half to one octave above the frequency of the energy 
produced by pile driving or instantaneous UXO/MEC detonation (i.e., the 
low-frequency region below 2 kHz) (Cody and 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.
    As stated in the proposed rule, NMFS acknowledges that there is 
limited data on threshold shifts in marine mammals. Relationships 
between TTS and PTS thresholds have not been studied in marine mammals, 
and there is no PTS data for cetaceans. However, such relationships are 
assumed to be similar to those in humans and other terrestrial mammals. 
Noise exposure can result in either a permanent shift in hearing 
thresholds from baseline (PTS; a 40 dB threshold shift approximates a 
PTS onset; e.g., Kryter et al., 1966; Miller, 1974; Henderson et al., 
2008) or a temporary, recoverable shift in hearing that returns to 
baseline (a 6 dB threshold shift approximates a TTS onset; e.g., 
Southall et al., 2019). Based on data from terrestrial mammals, a 
precautionary assumption is that the PTS thresholds, expressed in the 
unweighted peak sound pressure level metric (PK), for impulsive sounds 
(such as impact pile driving pulses) are at least 6 dB higher than the 
TTS thresholds and the weighted PTS cumulative sound exposure level 
thresholds are 15 (impulsive sound) to 20 (non-impulsive sounds) dB 
higher than TTS cumulative sound exposure level thresholds (Southall et 
al., 2019a). Given the higher level of sound or longer exposure 
duration necessary to cause PTS as compared with TTS, PTS is less 
likely to occur as a result of these activities, but it is possible and 
a small amount has been proposed for authorization for several species. 
For more detailed information on PTS and TTS, please see the Hearing 
Threshold Shift and Negligible Impact Determination sections of the 
proposed rule.
    NMFS disagrees that the potential effects to species as a result of 
the project's specified activities would result in increased risk of 
vessel strikes. Please see our response to Comment 8 for more details 
on the vessel strike avoidance requirements required by this final 
rule.
    Comment 6: A commenter suggested that NMFS' low-frequency cetacean 
weighting function is inaccurate because it applies a 2-pole High-pass 
filter set at 200 Hz, while Southall et al. (2007) suggested moving the 
high-pass filter down to 7Hz. The commenter was also concerned that 
applying any weighting function underestimates the potential impacts on 
marine mammals because they claim applying a weighting function assumes 
that when hearing is less sensitive at the outer limits of the hearing 
range, the effects to the animal (potential for adverse impact) will be 
insignificant or non-existent unless inordinately loud. They also 
claimed that there is no empirical evidence that NMFS' weighting curve 
aligns with mysticetes infrasonic hearing. Further, they assert signal 
kurtosis was not accounted for in NMFS analysis and should be included 
in any predictive impact models. Commenter(s) also state that the 
spreading model is inadequate for modeling noise levels as it does not 
account for reflection off the water's surface or from other sources.

[[Page 52231]]

    Response: The marine mammal weighting functions in NMFS' 2018 
Revised Technical Guidance do not contain any filters. Furthermore, the 
Revised Technical Guidance provides generalized hearing ranges for 
marine mammal species, where the low-frequency cetacean lower bounds of 
the hearing range start at 7 kHz. These weighting functions are meant 
to reflect the hearing groups' susceptibility to noise-induced hearing 
loss and are based on audiogram data, as well as TTS data. Furthermore, 
for impulsive sources, there are peak sound pressure level criteria 
that are unweighted. Thus, impacts of noise on hearing will not be 
underestimated. For low-frequency cetaceans, since direct measurements 
of hearing ability are lacking, weighting functions are based on a 
multitude of information, including anatomical studies and modeling 
(Houser et al., 2001; Parks et al., 2007; Tubelli et al., 2012; 
Cranford and Krysl 2015); vocalizations (see reviews in Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008); taxonomy; 
and behavioral responses to sound (Dahlheim and Ljungblad, 1990; see 
review in Reichmuth, 2007). Finally, kurtosis is an additional metric 
to determine if a sound is impulsive versus non-impulsive (i.e., 
kurtosis is a measure of the ``peakedness'' of a noise waveform, with 
the impulsive components (Qiu et al., 2020). As described in the 
proposed rule and NMFS' Technical Guidance (NMFS, 2018), NMFS applies 
different thresholds in an impact analysis for impulsive and non-
impulsive sources. Impact pile driving is categorized as an impulsive 
sound. Thus, while kurtosis was not assessed directly, whether a sound 
is impulsive or non-impulsive is inherently considered in our analyses 
when assessing the potential for PTS (i.e., deciding which acoustic 
thresholds are appropriate based on sound source characteristics that 
include a source's impulsiveness). Therefore, kurtosis (the impulsivity 
of a sound source) is accounted for in NMFS analysis.
    Potential impacts to marine mammal nervous systems through exposure 
to sound were discussed in the proposed rule in the Potential Effects 
of Underwater Sound on Marine Mammals section. NMFS assumes that the 
reference to ``injury-causing'' SPL by the commenter is the potential 
for a permanent threshold shift (PTS).
    NMFS disagrees that the spreading model is inadequate. The degree 
to which underwater sound propagates away from a sound source is 
dependent on a variety of factors, which notably includes the frequency 
and directivity of the source, water depth (or bathymetry), the 
reflective or absorptive nature of the seabed, and other factors. 
Spherical spreading occurs in a perfectly unobstructed (free-field) 
environment not limited by depth or water surface, resulting in a 6-dB 
reduction in sound level for each doubling of distance from the source 
(20 x log[range]). Spherical spreading can be thought of as a `direct 
path' model, as all sound in the water column is assumed to have 
arrived via a direct path from the source. Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10 x log[range]). Both 
cylindrical spreading and the often used `practical spreading' model 
are multi-path models, in that they account for sound which may consist 
of both direct paths and paths consisting of reflections from the 
seabed and the sea surface.
    As described in the proposed rule, the area of water ensonified at 
or above the RMS 160-dB threshold was calculated using a simple model 
of sound propagation loss, which accounts for the loss of sound energy 
over increasing range. Our use of the spherical spreading model, is a 
reasonable approximation over the relatively short ranges involved. 
Even in conditions where cylindrical spreading (where propagation loss 
= 10 x log [range]; such that there would be a 3-dB reduction in sound 
level for each doubling of distance from the source) may be appropriate 
(e.g., non-homogenous conditions where sound may be trapped between the 
surface and bottom), this effect does not begin at the source. Rather, 
spreading is typically more or less spherical from the source out to 
some distance, and then may transition to cylindrical (Richardson et 
al., 1995). Further, for these types of surveys, NMFS has determined 
that spherical spreading is a reasonable assumption even in relatively 
shallow waters, as the reflected energy from the seafloor will be much 
weaker than the more dominant, direct path energy. This is a result of 
the typically high-frequency and often downward directed nature of most 
HRG sources. Similar arguments, related to the validity of spherical 
spreading in shallow water for some HRG sources, have been made in 
literature (Ruppel et al., 2022), and NMFS has relied on this approach 
for past ITAs with similar equipment, locations, and depths. NMFS' User 
Spreadsheet tool assumes a ``safe distance'' methodology for mobile 
sources where propagation loss is spherical spreading (20LogR) (https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null), and NMFS calculator tool for 
estimating isopleths to Level B harassment thresholds also incorporates 
the use of spherical spreading. NMFS has determined that spherical 
spreading is the most appropriate form of propagation loss for these 
surveys and represents the best scientific information available.
    Comment 7: Commenter(s) stated that auditory injury can occur below 
the PTS threshold and could occur below the TTS threshold. Further, 
that noise levels that did not manifest in PTS soon after an exposure 
event could cause irreversible neural damage in mammals after repeated 
or cumulative exposure. They also stated that the threshold for tissue 
injury has been found to occur at lower threshold than the threshold 
for TTS onset (Houser, 2021). NMFS' nearly singular focus on PTS 
distance (distance from activity at which partial or full permanent 
deafness will be induced in the whale) as the only indicator of 
``take'' (premature death or reproductive failure affecting the 
population) is not reasonable. NMFS has no empirically derived direct 
measure of thresholds for PTS harm, but rather PTS is modeled from 
(limited) TTS data. NMFS is inappropriately defining ``harm'' to low-
Frequency baleen whales as NMFS does not have any empirically-
determined benchmark for what is the injury-causing sound pressure 
level (SPL) against which to measure the proposed activities.
    Response: NMFS's TTS thresholds represent an onset of noise-induced 
hearing loss (i.e., 6 dB threshold shift) and are considered the 
minimum threshold shift clearly larger than any day-to-day or session-
to-session variation in a subject's normal hearing ability (Schlundt et 
al., 2000; Finneran et al., 2000; Finneran et al., 2002). There have 
been no indications that in marine mammals TTS occurs below our current 
thresholds. Furthermore, as Houser 2021 indicates ``There are 
relatively few studies demonstrating that TTS can be associated with 
the destruction of tissue. To date, relevant studies have only been 
performed in terrestrial laboratory animals.'' Studies on terrestrial 
mammals indicating neuropathy from noise exposure are associated with 
threshold shifts of 40 to 50 dB. Finally, PTS is defined as a threshold 
shift that does not fully recover back to baseline levels. It should 
not be assumed that an animal with PTS is deaf.

[[Page 52232]]

    As stated in the proposed rule and reiterated here, there are no 
PTS data available for cetaceans and only one instance of PTS being 
induced in older harbor seals (Reichmuth et al., 2019). However, 
available TTS data (of mid-frequency hearing specialists exposed to 
mid- or high-frequency sounds (Southall et al., 2007; NMFS, 2018; 
Southall et al., 2019)) suggest that most threshold shifts occur in the 
frequency range of the source up to one octave higher than the source. 
We would anticipate a similar frequency range affected for PTS. 
Further, no more than a small degree of PTS is expected to be 
associated with any of the incurred Level A harassment, given it is 
unlikely that animals would stay in the close vicinity of a source for 
a duration long enough to produce more than a small degree of PTS. More 
information on PTS and TTS-PTS shift can be found in the ``Negligible 
Impact Analysis and Determination'' and the ``Potential Effects of 
Underwater Sound on Marine Mammals'' sections in the proposed rule. 
Furthermore, NMFS also relies on our behavioral harassment thresholds 
to assess potential effects occurring below levels associated with PTS 
and TTS. For information on the 160 dB threshold (onset of Level B 
behavioral harassment), please see our response to Comment 3. For more 
information related to PTS, please see our response to Comment 5.

Mitigation

    Comment 8: Commenter(s) requested NMFS add to or modify the vessel 
strike avoidance mitigation measures contained within the proposed 
rule. Recommendations included ``strengthening vessel speed 
restrictions'', and if weather or other conditions limit the range of 
observation, shutdown zones (including for transiting vessels) will be 
initiated keeping 500 meters (m) away from North Atlantic right whale. 
A commenter also incorrectly claimed that vessel speed restrictions are 
not fully mandated or enforced for offshore wind vessels.
    Response: NMFS acknowledges that vessel strikes pose a risk to all 
large whales, including North Atlantic right whales and the proposed 
rule and this final rule require multiple 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 transiting vessels (regardless 
of speed or size) are required to have a dedicated visual observer 
watching for marine mammals. In the event a marine mammal is observed 
under certain circumstances, the vessel must slow to 10 kn or less or, 
if within separation zones (which are encoded in regulation (62 FR 
6729, March 17, 1997) or follow marine mammal viewing guidelines), turn 
away from and slow engines to neutral. In any SMA, DMA, Slow Zone (the 
latter two of which are currently voluntary for other vessels), 
Avangrid must operate vessels at 10 kn or less. Further, between 
November 1 and April 30, all vessels, regardless of size, in the 
specified geographical region must operate at 10 kn or less (11.5 mph). 
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 kn 
or less speed restriction. However, NMFS has determined that when 
whales are less likely to be in the area and visual and acoustic 
monitoring is conducted, Avangrid vessels could travel at over 10 kn. 
NMFS has determined that the monitoring required, including both direct 
marine mammal monitoring and situational awareness monitoring and 
reporting, are sufficient to allow Avangrid vessels to travel at speeds 
greater than 10 kn when vessel strike risk is lowest when not subjected 
to the previously described restrictions.
    In this final rule, NMFS is requiring that all vessels associated 
with Avangrid's activities must be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and Avangrid 
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 
is not requiring 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, Avangrid 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.
    Avangrid provided information pertaining to the types and number of 
vessels necessary to construct the project. They are also required to 
submit a Marine Mammal 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, we have analyzed the potential for vessel strike resulting 
from Avangrid's activity and, in consideration of the required 
mitigation measures specific to vessel strike avoidance included in the 
final rule NMFS has determined that the potential for vessel strike is 
so low as to be discountable and thus, no vessel strikes are expected 
or authorized to occur. These measures also ensure the least 
practicable adverse impact on species or stocks and their habitat.
    Comment 9: Commenter(s) 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. In contrast, 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 10: Commenter(s) recommended clarification should be 
included in the LOA that explicitly states if a shutdown would be 
initiated as a result of weather or other conditions that limit the 
range of observation.
    Response: The comment refers to a 500-m shutdown zone for North 
Atlantic right whales; therefore, NMFS assumes the recommendation is 
referring to HRG surveys, 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 (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

[[Page 52233]]

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 again, 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 11: Commenter(s) recommended that NMFS require mitigation 
measures that meet the least practicable adverse impact standard (e.g., 
impacts of underwater noise be minimized to the fullest extent 
feasible) coupled with a robust monitoring and reporting program to 
ensure compliance.
    Response: As described in both the proposed rule and this final 
rule, NMFS has included requirements for mitigation measures that 
effect the least practicable adverse impact on marine mammal species or 
stocks and their habitat, as required under the MMPA (16 U.S.C. 
1371(a)(5)(A)(i)(II). As they relate to underwater noise, the 
mitigation measures include sound attenuation methods that successfully 
(evidenced by required sound field verification measurements) reduce 
real-world noise levels produced by impact pile driving, vibratory pile 
driving, and drilling of foundation installation to, at a minimum, the 
levels modeled assuming 10 dB of 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. In addition to the SFV requirements in the proposed 
rule, consistent with the Biological Opinion (BiOp), we added to this 
final rule the requirement that Avangrid 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 (i.e., ``Thorough SFV''), 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 Avangrid, 
including an explanation of factors that contributed to the exceedance 
and corrective actions that were taken to avoid exceedance on 
subsequent piles.
    NMFS has required numerous monitoring and reporting requirements 
which result in a robust compliance program.

Effects Assessment

    Comment 12: Several commenters disagreed with NMFS' negligible 
impact determination, particularly for North Atlantic right whale. 
These comments included assertions that NMFS did not consider the 
imperiled population status of North Atlantic right whale; NMFS did not 
evaluate the cumulative effects of all projects (such as offshore wind 
construction and operational noise, underwater noise, and site 
characterization surveys and baseline background levels of ambient 
noise which result in stress); NMFS did not 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 (e.g., masking, disruption to courtship and mating behaviors, 
foraging/feeding, and TTS, etc.); that NMFS did not adequately assess 
the impact of behavioral disruption on feeding and similar behaviors 
resulting in decreased body condition nor the asserted increased risk 
of mortality from TTS; that any effect to the small number of breeding 
females can adversely affect fecundity and imperil the species; that 
NMFS has not used the best available science when reaching its NID by 
using the 160-dB threshold; and that NMFS did not 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 North Atlantic right whale 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 geographical 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 MMPA 
section 101(a)(5). 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 a LOA for construction activities planned 
by Avangrid, 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 North Atlantic right whale, were 
analyzed under section 7 of the ESA when NMFS engaged in formal inter-
agency consultation with the NOAA Greater Atlantic Regional Field 
Office (GARFO). The BiOp 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 our negligible impact determination is flawed 
or not supported. NMFS fully disclosed the imperiled status of North 
Atlantic right whales in the Description of Marine

[[Page 52234]]

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 North Atlantic right whales 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 the specified 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 in the proposed rule contained an analysis on the impacts of 
masking both in general and from the specified activities. NMFS also 
disagrees that TTS would result in increased risk of mortality. TTS was 
fully described in the Potential Effects of Underwater Sound on Marine 
Mammals and Potential Effects of Disturbance on Marine Mammal Fitness 
in the proposed rule. NMFS does not anticipate nor authorize serious 
injury or mortality of any marine mammal species for 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 pile driving and 
drilling. Not only would this activity be limited to times of year when 
North Atlantic right whale presence is low, pile driving and drilling 
would be intermittent, and only occur for a limited time over the 
course of 2 or 3 years (depending on schedule type). 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.
    For NMFS' response on the use of the 160-dB threshold, please see 
our response to Comment 3.
    Comment 13: Commenter(s) 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.
    Response: NMFS has provided a reasoned approach to small numbers, 
as described in the ``Taking Marine Mammals Incidental to Geophysical 
Surveys Related to Oil and Gas Activities in the Gulf of Mexico'' final 
rule (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 (see Small Numbers section for more 
detail). Neither the MMPA nor our implementing regulations require the 
small numbers analysis to consider take from previous, ongoing, or 
potential projects.
    Comment 14: Commenters suggested NMFS failed to account for the 
cumulative (or additive) impacts on marine mammal species in the 
analysis and that NMFS should evaluate the cumulative impacts of 
ongoing and future OSW projects rather than evaluating projects 
individually, including that NMFS must consider the total number of 
takes proposed to be authorized across all wind projects. They 
suggested that NMFS 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 North Atlantic 
right whales, and ensure that the cumulative effects are not excessive 
before issuing a 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 (54 FR 40338, September 29, 1989) states, in response to 
comments, that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, NMFS 
has factored into its negligible impact analysis the impacts of other 
past and ongoing anthropogenic activities via their impacts on the 
baseline (e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and other relevant 
stressors). The 1989 final rule for the MMPA implementing regulations 
also addressed public comments regarding cumulative effects from 
future, unrelated activities. There, NMFS stated that such effects are 
not considered in making findings under section 101(a)(5) concerning 
negligible impact. In this case, this ITR, as well as other ITRs 
currently in effect or proposed within the specified geographical 
region are appropriately considered an unrelated activity relative to 
the others. The ITRs are unrelated in the sense that they are discrete 
actions under section 101(a)(5)(A) issued to discrete applicants. 
Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination 
that the take incidental to a ``specified activity'' will have a 
negligible impact on the affected species or stocks of marine mammals.
    NMFS' implementing regulations require applicants to include in 
their request a detailed description of the specified activity or class 
of activities that can be expected to result in incidental taking of 
marine mammals, 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, 
Avangrid was the applicant for the ITR, and we are responding to the 
specified activity as described in that application and making the 
necessary findings on that basis.
    Through the response to public comments in the 1989 implementing 
regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1) 
that we would consider cumulative effects that are reasonably 
foreseeable when preparing a NEPA analysis and (2) that reasonably 
foreseeable cumulative effects would also be considered under section 7 
of the ESA for listed species, as appropriate. Accordingly, NMFS has 
adopted an EIS written by BOEM and reviewed by NMFS as part of inter-
agency coordination. This EIS addresses cumulative impacts related to 
the Project and substantially similar activities in similar locations. 
Cumulative impacts regarding the promulgation of the regulations and 
issuance of a LOA for construction activities, such as those planned by 
Avangrid, have been adequately addressed under NEPA in the adopted EIS 
that supports NMFS' determination that this action has been 
appropriately analyzed under NEPA. Separately, the cumulative effects 
of the Project on ESA-listed species, including North Atlantic right 
whales, was analyzed under section 7 of the ESA when NMFS engaged in 
formal inter-agency

[[Page 52235]]

consultation with GARFO. The BiOp for the Project determined that NMFS' 
promulgation of the rulemaking and issuance of a LOA for construction 
activities associated with leasing, individually and cumulatively, are 
likely to adversely affect, but not jeopardize, listed marine mammals.
    Comment 15: Commenter(s) 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 of proof 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 North Atlantic right 
whales that are not covered by the authorization's terms.
    Response: Neither the proposed rule or 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 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 we provide further information on the humpback UME in the 
humpback whale subsection in the Description of Marine Mammals in the 
Specified Geographical 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, either ship 
strike or entanglement. Vessel strikes and entanglement in fishing gear 
are the greatest human threats to large whales. The remaining 50 
necropsied whales either had an undetermined cause of death (due to a 
limited examination or decomposition of the carcass) or had other 
causes of death including parasite-caused organ damage and starvation. 
The best available science indicates that only Level B harassment, or 
disruption of behavioral patterns (e.g., avoidance), may occur as a 
result of the Project'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.
    The proposed rule and this final rule state that no take of North 
Atlantic right whales 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 whales, can cause 
decompression sickness (the bends) and can cause rectified diffusion. 
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 Avangrid 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 16: Commenter(s) recommended NMFS consider the impacts of 
structure presence and operations, including those from operational 
turbine noise on marine mammals as well as ocean mixing and vibrations 
on phytoplankton, zooplankton, and the food chain. Commenter(s) 
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 BiOp. We refer 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 this 
final rule for further details.

Other

    Comment 17: Commenter(s) requested that NMFS consideration of LOAs 
for offshore wind developers be applied equitably across industries 
(e.g., fishing industry) and that there be a clear threshold for OSW-
related takes regionally and across project phases. In addition, the 
OSW-industry must be held accountable for incidental takes from 
construction and operations separately from the take authorizations for 
managed commercial fish stocks. Commenters) also asserted the OSW 
industry must be held accountable for their impacts on marine mammals 
as other industries are (e.g., seasonal closures on fisheries, marine 
mammal entanglements).
    Response: NMFS considers all ITA requests equally, all takes and 
regulatory measures are project-specific. 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. 
There are several conservative assumptions built into the models to 
ensure the number of takes

[[Page 52236]]

authorized is sufficient based on the description of the Project. 
Therefore, takes authorized, being specific to a project, are managed 
separately than takes associated with any other project or industry. 
Avangrid would be accountable to the measures described in their ITA 
that were set to achieve ``the least practicable impact on such species 
or stock and its habitat''. These include mitigation, monitoring, and 
reporting measures (e.g., seasonal closures, gear-specific mitigation 
measures to avoid entanglements, etc.).
    Avangrid would be required to submit frequent reports which would 
identify the number of takes applied to the Project. In the unexpected 
event that Avangrid exceeds the number of takes authorized for a given 
species, the MMPA and its implementing regulations state that NMFS 
shall withdraw or suspend the LOA issued under these regulations, after 
notice and opportunity for public comment, if it finds the methods of 
taking or the mitigation, monitoring, or reporting measures are not 
being substantially complied with, or the taking allowed is having, or 
may have, more than a negligible impact on the species or stock 
concerned (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, 
failure to comply with the requirements of the LOA may result in civil 
monetary penalties and knowing violations may result in criminal 
penalties (16 U.S.C. 1375; 50 CFR 216.206(g)).
    Moreover, as noted previously, fishing impacts, and NMFS assessment 
of them, generally center on entanglement in fishing gear, which is a 
very acute, visible, and severe impact (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 our 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). We 
note that the New England Wind Final EIS assesses the impacts of both 
BOEM and NMFS' actions (approving Avangrid'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 such as offshore wind site characterization surveys, 
under MMPA section 118.
    Comment 18: Commenter(s) questioned what will happen if incidental 
take is exceeded, and the implications of it.
    Response: In the unlikely scenario that Avangrid exceeds their 
authorized take levels, any further take would be unauthorized and 
therefore, prohibited under the MMPA. Avangrid 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 19: Commenter(s) expressed concern about NMFS' ability to 
conduct marine mammal assessment aerial surveys would be detrimentally 
impacted as a result of offshore wind structures, 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.

Changes From the Proposed to Final Rule

    Since the publication of the proposed rule in the Federal Register 
(88 FR 37606, June 8, 2023), NMFS has made changes, where appropriate, 
in response to public comments and new information provided by Avangrid 
that are reflected in the regulatory text and preamble text of this 
final rule. Specifically, as described above, Avangrid refined and 
updated their acoustic modeling for foundation installation activities 
since the proposed rule which resulted in changes to the exposure 
estimates and requested take. These changes are briefly identified 
below, with more information included in the indicated sections of this 
final rule:

Changes in Information Provided in the Preamble

    The information found in the preamble of the proposed rule was 
based on the best available information at the time of publication. 
Since publication of the Proposed Rule, new information has become 
available, which has been incorporated into this final rule as 
discussed below.
    The following change was made throughout the final rule:
    At the request of Park City Wind and consent of Avangrid, 
references to Park City Wind were replaced with Avangrid and lease 
number OCS-A 0561 was added, where appropriate, since lease area OCS-A-
0534 was segregated.
    The following changes were made to the Purpose and Need for 
Regulatory Action section of the preamble to this final rule:
    We have added regulatory definitions under Legal Authority for the 
Final Action for ease of reference.
    The following changes were made to the Summary, Summary of Request 
and Description of the Specified Activity sections of the preamble to 
this final rule:
    We have included OCS-A 0561 as Avangrid segregated the OCS-A 0534 
lease area in to two parts: OCS-A 0534 encompasses phase 1 and 0561 
encompasses phase 2.
    The following changes are reflected in the Description of Marine 
Mammals in the Specified Geographical Region section of the preamble to 
this final rule:
    NMFS clarified the boundaries of the specified geographical region 
such that the Mid-Atlantic Bight is defined as from Cape Hatteras, 
North Carolina to Cape Cod, Massachusetts and extending into the 
western Atlantic to the 100-m isobath.
    Given the release of NMFS' draft 2023 stock assessment reports 
(SARs; 89 FR 5495, January 29, 2024), we have updated the population 
estimate used in the proposed rule (Hayes et al., 2023) for the North 
Atlantic right whale (Eubalaena glacialis) from 338 to 340 and the 
total mortality/serious injury (M/SI) amount from 8.1 to 27.2. This 
increase is due to the inclusion of undetected M/SI (whereas 8.1 
accounted only for detected M/SI). As stated in the 2023 draft SARs, 
the use of the refined methods of Pace et al. (2021), the estimated 
annual rate of total mortality of adults and juveniles for the period 
2016-2020 was 27.2, which is over 3 times larger than the 8.1 total 
derived from reported mortality and serious injury for the same period.
    We have also made updates to the UME summaries for North Atlantic 
right

[[Page 52237]]

whales, humpback whales, minke whales, and phocid seals (pinnipeds).
    The following changes are reflected in the Estimated Take, 
Mitigation, and Monitoring and Reporting sections the preamble to this 
final rule:
    NMFS received a number of modeling and density updates from the 
applicant since the proposed rule, which resulted in associated changes 
in the size of harassment zones, take numbers, and mitigation zones. As 
a result of the updated and refined modeling, we have updated the 
methods by which distances to NMFS harassment thresholds were 
estimated, the distances to NMFS harassment thresholds, the exposure 
estimates based on the updated acoustic modeling, and requested and 
allowable take amounts (which, generally speaking, went down as a 
result of these modeling refinements). NMFS notes that there were no 
changes to the number of foundations, construction schedule, or the 
assumption of 10 dB of noise attenuation as described in the proposed 
rule. The modeling and density changes are briefly listed here and 
described in more detail below:
     Upgraded, more refined take estimation modeling of 
vibratory pile driving, to reflect that which was presented in the 
proposed rule for impact pile driving (with animats). The revised 
modeling for vibratory setting of piles (followed by impact pile 
driving) replaced the practical spreading loss approach with acoustic 
modeling; and exposures for impact pile driving and vibratory setting 
were updated using animal movement modeling. This resulted in a notable 
reduction in exposure ranges and takes by Level B harassment.
     Upgraded sound source propagation modeling of the impact 
pile driving source, which resulted in little change in take or 
mitigation zones. The acoustic modeling was upgraded for impact piling 
as the previous energy-based parabolic equation model used to compute 
the near-field equivalent source before long range propagation was 
revised after the proposed rule using JASCO's Full-Wave PE RAM model 
(FWRAM) to compute the near-field equivalent source before the long-
range propagation was computed (also using FWRAM).
     Upgraded sound source propagation modeling of the drilling 
activity (in lieu of 15 logR spreading), which resulted in some minor 
reductions in take. The acoustic updated modeling completed for 
drilling replaced the previous practical spreading loss approach; 
exposures were calculated by multiplying the zone of influence 
(ensonified area) by density.
     Improvements to the apportionment of species takes within 
species guilds (pilot whales, seals). Updates were made by the 
applicant to guilded species densities for vibratory setting followed 
by impact pile driving, impact pile driving alone, and drilling.
     An update to the model assumptions for high frequency 
species (harbor porpoise). This change reduced the exposure ranges and, 
subsequently, amount of takes by harassment.
    Following the proposed rule, new modeling was performed for 
vibratory pile driving which replaced the previous practical spreading 
loss approach that defined the distance to Level B harassment as 50 
kilometer (km). For the final rule, acoustic modeling was completed for 
vibratory setting of piles followed by impact driving, and exposures 
were modeled using animal movement modeling (animat), mirroring the 
method described in the proposed rule for impact pile driving. In 
general, the animat modeling resulted in the exposure distance to Level 
B harassment per species decreasing (most species' distance to the 
Level B harassment threshold were around 25 km) and, as marine mammals 
densities were applied depending on the exposure range using the 95th 
percentile exposure range (ER95), exposure estimates 
and takes decreased. Instead of using a broad 50-km distance for 
estimating exposure and marine mammal density, such as was done in the 
proposed rule, the exposure estimates and take applied the marine 
mammal densities at 10 km, 25 km, or 50 km, using the using the next 
highest density match to the exposure range. For example, if the 
ER95 was 8.5 km, the 10 km perimeter would be used. 
These revisions to the more refined modeling methods of estimating take 
for vibratory pile driving resulted in notable reductions in the Level 
B take estimates. The primary model refinement that resulted in the 
majority of the reduction in exposures and take in this final rule was 
from this change in vibratory pile driving modeling.
    Following the proposed rule, the modeling methodology for impact 
pile driving was refined. In the prior modeling for impact pile 
driving, an energy-based parabolic equation (PE) model (JASCO's MONM) 
was used to compute the near-field equivalent source before long range 
propagation. For the final rule, JASCO's Full-Wave PE RAM model (FWRAM) 
was used to compute the near-field equivalent source before the long-
range propagation was computed (also using FWRAM). FWRAM is an 
improvement because it calculates full synthetic pressure waveforms (in 
the time domain), as opposed to summed energy independent of time. Like 
MONM, FWRAM is range dependent for range-varying marine acoustic 
environments and takes environmental inputs (bathymetry, water sound 
speed profile, and seabed geoacoustic profile) into account. FWRAM 
computes pressure waveforms via Fourier synthesis of the modeled 
acoustic transfer function in closely spaced frequency bands, and 
employs the array starter method to accurately model sound propagation 
from a spatially distributed source (MacGillivray and Chapman 2012). 
Ultimately, little difference was observed between the prior sound 
fields with near-field equivalents computed using MONM versus the 
current modeling with FWRAM, though FWRAM is expected to be a more 
accurate model.
    As part of the above modeling updates to impact pile driving and 
vibratory pile driving followed by impact pile driving (MONM to FWRAM 
modeling), changes resulted in the exposure ranges for high-frequency 
cetaceans (harbor porpoise). PE based models such as MONM and FWRAM are 
particularly well suited for modeling the propagation of low frequency 
sounds, such as impact pile driving, but are limited in terms of the 
total and upper frequency range they can accurately and efficiently 
model (Etter, 2012). For this reason, propagation must be modeled to 
some upper cut-off frequency. Beyond this frequency, a linear 
extrapolation (or roll-off) can be assumed in order to extend the 
results to higher frequencies. The slope of this roll-off is based on 
measured pile driving data and chosen to be conservative. Selection of 
a proper upper cut-off frequency depends on available computational 
resources, as well as the specific implementation of the PE method of a 
particular model (Laws, 2013). Because of this, and inherent 
differences of the two modeling methodologies, the cut-off used in the 
original modeling for the proposed rule was 300 Hz, while the cut-off 
in the revised model is 1,000 Hz. Therefore, the new modeling 
represents a more accurate methodology for frequencies between 300 and 
1,000 Hz, as full propagation modeling is performed in this frequency 
range, rather than an approximate extrapolation (or roll-off). Both 
modeling approaches produce the same results at low frequencies where 
pile driving sound is dominant, but since the conservatively chosen 
roll-off started at

[[Page 52238]]

300 Hz, there is more higher frequency energy in the original model 
than in the revised model. For this reason, the two approaches produce 
similar results for low-frequency cetaceans, but the revised modeling 
results in substantially different exposure ranges for high-frequency 
cetaceans. Following the proposed rule, new modeling was performed for 
drilling which replaced the previous practical spreading loss approach 
that defined the distance to Level B harassment as 16.6 km. For the 
final rule, acoustic modeling was completed for drilling and exposures 
were calculated by multiplying the zone of influence (ensonified area) 
by density. Rather than using practical spreading, sound propagation is 
modeled using a combination of an energy-based parabolic equation (PE) 
model (JASCO's MONM) at frequencies up to 1 kHz, and the BELLHOP ray 
tracing model (Porter and Liu 1994) from 1 to 25 kHz. BELLHOP is a 
widely used Gaussian beam ray-trace propagation model, which 
incorporates bathymetry, sound speed profiles, and a simplified 
representation of the sea bottom; as sub-bottom layers have a 
negligible influence on the propagation of acoustic waves with 
frequencies above 1 kHz. Sound attenuation due to seawater absorption 
was included, which can be important for frequencies greater than 5 
kHz. The drill was approximated as a point source located at mid-water 
depth. Further details regarding MONM are provided below, in the 
context of pile driving. The density perimeter was determined using the 
longest 10-dB attenuated 95th percentile acoustic range to the 
behavioral threshold (R95) for all locations, 
rounded up to the nearest 5 km, and then applied around the entire 
lease area (i.e., 7.1 km rounded up to 10 km). This new approach is 
expected to more accurately capture the spatial extent of the sound 
fields, as it includes an updated source level (191.6 dB) as well as 
more sophisticated propagation modeling which accounts for bathymetry, 
sound speed profiles, interaction with the seabed, and seawater 
absorption. This refinement in the drilling model also resulted in some 
minor reductions in exposure and take. Further details can be found in 
the Modeling and Take Estimates section.
    In order to better reflect available species data specific to the 
area, we have also updated the methodology for estimating take for 
species combined into one guild in the Roberts et al. density models 
(harbor seals, grays seals, long-finned pilot whales, and short-finned 
pilot whales), by using local abundance data to define how the takes 
within a guild should be apportioned by species or stock as opposed to 
using SAR abundance data to define how takes should be apportioned with 
a guild, and subsequently, updated take by Level B harassment 
authorized for these species.
    As a result of the updated modeling, NMFS has changed (some 
increases, some decreases) the minimum visibility zone, clearance 
zones, and shutdown zones for all species during foundation 
installation activities. The clearance and shutdown zones sizes for 
each foundation type (i.e., monopile, jacket) are now based on the 
largest distance to Level A harassment threshold of all the foundation 
installation methods (i.e., impact pile driving, vibratory pile 
driving, drilling), with a 20 percent increase to the clearance zone. 
Avangrid requested, and NMFS has carried forward, zone sizes by the 
largest foundation type (i.e., monopile, jacket) and hammer size. 
Lastly, Avangrid did not request different zone sizes based on the 12-m 
monopile versus the 13-m monopile in their January 2024 Application 
Update as they did prior to the proposed rule. Instead, Avangrid 
proposed zone sizes based on the 13-m monopile at 6,000 kJ, though this 
foundation installation scenario remains unlikely though possible. NMFS 
has therefore set the zone sizes as the largest across all foundation 
and hammer sizes for each foundation type (monopile, jacket), 
regardless if Avangrid choses to install a smaller pile or use a 
smaller hammer during real-world foundation installation. However, 
Avangrid may request modifications through adaptive management should 
sound field verification (SFV) demonstrate noise levels are lower than 
expected.
    As a result of the new modeling, the monopile visual (PSO) and 
acoustic (PAM) clearance zone sizes for other baleen whales and sperm 
whale has decreased from 4,700 m for all pile driving and drilling to 
3,300 m (all installation methods); the pile driving and drilling 
shutdown zones has similarly decreased from 4,700 m (12-m) and 5,500 m 
(13-m) to 2,700 m (all installation methods). The refined modeling for 
harbor porpoise decreased the zone sizes from 2,300 m (monopile pile 
driving and drilling) to 250 m, as the maximum injury 
(ER95) for harbor porpoise is 240 m. The zone sizes 
for seals decreased from 1,100 m (monopile impact pile driving) and 
1,400 m (monopile vibratory pile driving or drilling) to 200 m (all 
monopiles and installation methods) as the maximum injury 
(ER95) for seals was 0 m. The clearance and shutdown 
zones for small whales and dolphins remain unchanged (200 m) as the 
maximum injury (ER95) is 0 m. For those species that 
modeling resulted in less than 200 m Level A harassment distance to 
threshold, NMFS has set the minimum clearance and shutdown zone size as 
200 m to ensure the zones are outside the monopile's noise attenuation 
system (NAS). This was also the approach in the proposed rule.
    Based on the model changes above, the updated jacket (all pin 
piles) visual (PSO) and acoustic (PAM) clearance zone sizes for other 
baleen whales and sperm whale has increased from 4,500 m for impact 
pile driving and 4,700 m for vibratory pile driving and drilling to 
4,900 m (all installation methods); the pile driving and drilling 
shutdown zones has decreased from 4,500 m for impact pile driving and 
4,700 m for vibratory pile driving and drilling to 4,100 m (all 
installation methods). The refined modeling for harbor porpoise 
decreased the zone sizes from 1,800 m (impact pile driving) and 2,300 m 
(vibratory pile driving and drilling) to 250 m as the maximum injury 
(ER95) for harbor porpoise is 230 m. The zone sizes 
for seals decreased from 1,400 m (all pile driving and drilling) to 
1,000 m (clearance) and 800 m (shutdown) for all installation methods 
as the maximum injury (ER95) for seals was 790 m. 
The clearance and shutdown zones for small whales and dolphins remain 
unchanged (50 m) as the maximum injury (ER95) was 0 
m. For those species that modeling resulted in less than 50 m Level A 
harassment distance to threshold, NMFS has set the minimum clearance 
and shutdown zone size as 50 m to ensure the zones are outside the 
jacket's noise attenuation system (NAS). This was also the approach in 
the proposed rule.
    NMFS has not changed the North Atlantic right whale shutdown and 
clearance zones for visual observations (i.e., any distance), NMFS has 
set the acoustic clearance and shutdown zones during foundation 
activities for North Atlantic right whale to any acoustic detection 
within a 12-km acoustic monitoring zone which were previously set to 
5,600 m (monopile impact pile driving), 4,500 m (monopile vibratory 
pile driving and drilling), and 4,500 m (jacket pile driving and 
drilling). This final rule also clarifies that PAM must be conducted 
before, during, and after foundation installation and UXO/MEC 
detonation for North Atlantic right whales but the PAM system should be 
designed to detect all other marine mammals to the maximum extent 
practicable.

[[Page 52239]]

    We updated the minimum visibility zone based on the new modeling 
from Avangrid (largest ER95 distance to Level A 
harassment for low-frequency cetacean, not including fin whale), for 
all species during each foundation installation type then rounded for 
PSO clarity. As a result of the new modeling, the final rule sets the 
minimum visibility zone for monopiles at 2,100 m (humpback whale, 2,070 
m), 3,400 m for jacket installation (humpback whale, 3,320 m), and 500 
m for HRG (unchanged from the proposed rule). As described in the 
preamble of the proposed rule (page 405), NMFS originally set the 
minimum visibility zone size based on the North Atlantic right whale 
ER95 distance to the Level A harassment threshold, 
assuming 10 dB. NMFS recognizes that a footnote in table 35 of the 
proposed rule used incorrect terminology stating that the minimum 
visibility zone for North Atlantic right whale would be ``any 
distance'' which contradicted the earlier stated methodology for 
setting the minimum visibility zone and would not be practicable. As a 
result of the updated modeling, the minimum visibility zone in this 
final rule decreased, however, it is still larger than the updated 
North Atlantic right whale ER95 distance to the 
Level A harassment threshold, assuming 10 dB. To align with the BiOp, 
NMFS has used the largest ER95 distance to Level A 
harassment for low-frequency cetacean, not including fin whale, which 
uses the distance to Level A harassment for humpback whale which is 
greater than the ER95 distance to Level A harassment 
for North Atlantic right whale (monopile 2,070 m vs 1,620 m; jacket 
3,320 m vs 2,350 m).
    We have reduced takes by Level B harassment for Northern bottlenose 
whale from 12 to 8 as a result of a typo correction submitted by the 
applicant in the January 2024 Application Update. The applicant had 
previously not adjusted the total take request for this rare species by 
assuming encounters every other year but instead had unintentionally 
summed all annual takes at the time of the proposed rule. The takes by 
Level B harassment for Northern bottlenose whale in this final rule 
have been corrected based on encounters every other year.
    NMFS has re-organized and simplified the monitoring and reporting 
section to avoid repeating entirely the requirements provided in the 
regulatory text. NMFS has renamed the North Atlantic Right Whale Vessel 
Strike Avoidance Plan to the Marine Mammal Vessel Strike Avoidance Plan 
to more accurately reflect that the plan does not solely apply to North 
Atlantic right whales.
    In response to commenters' concerns regarding noise attenuation, we 
have added a general requirement that Avangrid must lower noise levels 
should they exceed those modeled assuming 10 dB of attenuation. Based 
on multiple commenters' concerns regarding noise attenuation, and as 
informed by preliminary sound measurements from South Fork Wind, NMFS 
has added a requirement that two functional noise attenuation devices 
that reduce noise levels to the modeled harassment isopleths, assuming 
a 10-dB attenuation, must be used during foundation pile driving. A 
single bubble curtain alone will not be allowed for use in mitigation.
    In response to commenters' concerns on vessel activity relating to 
the Project, all project vessels must utilize AIS device and must 
report all MMSI numbers to NMFS Office of Protected Resources;
    This final rule clarifies that the mitigation measure restricting 
Project vessels from traveling over 10 kn (5.14 m/s) in the transit 
corridor, unless Avangrid conducts real-time acoustic monitoring to 
detect large whales (including North Atlantic right whales), applies 
only when other speed restrictions are not in place.
    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. Because other industry 
operators have identified that specific soft-start procedures, such as 
those included in the proposed rule, may raise concerns regarding 
engineering feasibility and practicability, we have removed the 
specifics related to the soft-start procedure identified in the 
proposed rule (but not the requirement to conduct a soft-start), 
allowing for flexibility should the need for adjustments to the 
specific procedures arise. However, any alternative protocol would be 
as protective as the generic coastal construction soft-start 
specifications provided in the proposed rule. The final soft-start 
methodology will be developed by Avangrid, in consultation with NMFS, 
considering final design details including site-specific soil 
properties and other considerations.
    To align with the BiOp, NMFS has updated the UXO/MEC detonation 
zones to be specific to charge weight. The clearance zones, which are 
visually and acoustically monitored, were derived based on an 
approximate proportion of the size of the Level B harassment (TTS) 
isopleth then rounded for PSO clarity. The modeled distances to NMFS 
harassment thresholds have not changed from the UXO/MEC Acoustic 
Analysis Report in the application. The clearance zone sizes are 
contingent on Avangrid being able to demonstrate that they can identify 
charge weights in the field; if they cannot identify the charge weight 
sizes in the field then would need to assume the E12 charge weight size 
for all detonations and must implement the E12 clearance zone. 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.
    We updated the process for obtaining NMFS approval for PSO and PAM 
Operators and have clarified education, training, and experience 
necessary to obtain NMFS' approval.
    To align with the BiOp, we have added a requirement to have at 
least three active PSOs on the foundation installation platform (e.g., 
pile driving/drilling vessel) and any dedicated PSO vessel (or 
equivalent coverage) rather than two PSOs, as was originally described 
in the proposed rule. Addition of this requirement is based on NMFS' 
evaluation of PSO coverage abilities for similar projects in the area 
(e.g., Sunrise Wind) and has found that three PSOs (each covering 120 
degrees) will improve the reliability of detection from the PSO 
platforms (e.g., pile driving/drilling vessel, PSO-dedicated vessel, 
etc.). Previously at least four on-duty PSOs were required to actively 
observe for marine mammals before, during, and after installation of 
foundation piles (i.e., monopiles and pin piles), at least two of those 
PSOs must be stationed and observing on the pile driving vessel and at 
least two PSOs must be stationed on a secondary, PSO-dedicated vessel. 
NMFS is now requiring Avangrid to deploy three on-duty PSOs per 
platform and vessel instead of two. Alternatively, Avangrid may propose 
an alternative method other than three PSOs per platform that provides 
equal or greater visual monitoring effectiveness. Similarly, NMFS is 
now requiring that Avangrid must deploy at least three on-duty PSOs, 
instead of two on-duty PSOs, on each observation platform for all 
detonations. To align with the BiOp, NMFS is also requiring the use of 
two PSO-dedicated vessels in addition to the PSOs on the foundation 
installation platform.
    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

[[Page 52240]]

added a requirement that a pressure transducer must be used during all 
UXO/MEC detonations.
    Consistent with the BiOp, NMFS added additional details regarding 
thorough SFV requirements and added a requirement for Abbreviated SFV 
(consisting of a single recorder with a bottom and mid-water column 
hydrophone). We have also added requirements that Thorough SFV must be 
conducted on every pile until measured noise levels are at or below the 
modeled noise levels, assuming 10 dB; the minimum number of foundations 
previously required to have SFV has increased and now includes 
requirements for each construction year; and we have added a 
requirement that Avangrid must deploy at least eight hydrophones at 
four locations (one bottom and one mid-water column at each location) 
along an azimuth that is likely to see lowest propagation loss and two 
hydrophones (one bottom and one mid-water) at 750 m, 90 degrees from 
the primary azimuth during installation of all piles where Thorough SFV 
monitoring is required. Lastly, we have clarified that during Thorough 
SFV, installation of the next foundation (of the same type/foundation 
method) may not proceed until Avangrid has reviewed the initial results 
from the Thorough SFV and determined that there were no exceedances of 
any distances to the identified thresholds based on modeling assuming 
10 dB of attenuation.
    We have removed the requirements for reviewing data on an annual 
and biennial basis for adaptive management and instead will make 
adaptive management decisions as frequently as new information warrants 
it.

Changes in the Regulatory Text

    As described above regarding changes made to the preamble, we have 
made the following corresponding and additional changes to the 
regulatory text in response to new information provided by Avangrid and 
public comments.
    For clarity and consistency, we revised three paragraphs in Sec.  
217.320, ``Specified activity and specified geographical region,'' of 
the regulatory text to fully describe the specified activity, specified 
geographical region, and requirements imposed on the LOA Holder 
(Avangrid) and to clarify that the regulations apply to Avangrid 
Renewables LLC, as well as its successors or assigns, and those persons 
it authorizes or funds to conduct activities on its behalf. NMFS has 
also included the addition of OCS-A 0561 as a result of the OCS-A 0534 
lease segregation.
    For clarity, we have specified that any measures in Sec. Sec.  
217.324 and 217.325 required during jacket foundation installation are 
also required for bottom-frame foundations that utilize pile 
foundations.
    In Sec. Sec.  217.320, 217.322, 217.323, 217.324, 217.325, 217.326, 
and 217.327, NMFS has made minor changes to formatting and wording to 
more clearly state the requirements.
    In Sec.  217.324(a), NMFS has clarified that any visual observation 
of marine mammals, as opposed to only ESA-listed marine mammals, must 
be communicated to PSOs and vessel captains.
    NMFS has clarified language in Sec.  217.324(a) on what public 
sources Avangrid and its personnel must check and how often to stay 
informed on North Atlantic right whales detections in the area.
    NMFS has added additional clarification on the authority of PSOs 
and PAM operators in Sec.  217.324(a) to ensure compliance and proper 
implementation of the regulations.
    NMFS has specified that any visual or acoustic detection of a North 
Atlantic right whale within clearance zones must trigger a delay in 
commencement of pile driving, drilling, UXO/MEC detonation, and HRG 
surveys. NMFS has also updated the requirement Sec.  217.324(c)(8)(i) 
by expanding the terminology of ``piles installed'' to foundation 
installation activities, correcting the November 1-December 30 date 
range to November 1-December 31, and increasing the monitoring zone 
from 10 to 12 km.
    NMFS has added a requirement that all project vessels must utilize 
AIS and must report all MMSI numbers to NMFS Office of Protected 
Resources.
    NMFS has included a requirement for Avangrid to consent to on-site 
observations and inspections by Federal personnel during project 
activities.
    NMFS has added a prohibition to interfering with PSO or PAM 
operator responsibilities.
    NMFS has added a requirement for any large whale sighting to be 
communicated to all project-associated vessels, and for a large whale 
sighting log sheet to be retained for the vessel captain's review each 
day.
    In Sec.  217.324(b), NMFS has clarified the minimum separation zone 
for vessels when encountering a North Atlantic right whale.
    In Sec.  217.324(d), NMFS has added a requirement that Avangrid 
must notify NMFS 48 hours before any planned UXO/MEC detonation event 
unless this 48-hour notification would create delays to the detonation 
that would result in imminent risk to human life or safety. NMFS has 
also added a requirement that Avangrid may detonate a maximum of 10 
UXO/MECs, of varying sizes but no larger than 1,000 pounds (lbs; 454 
kilograms (kg)) charge weight (i.e., E12), over the effective period of 
this rulemaking and LOA(s). NMFS has added a requirement that a 
pressure transducer must be used to monitor pressure levels during all 
UXO/MEC detonations.
    NMFS has clarified the requirement in Sec.  217.324(b) to specify 
that this measure applies to vessels traveling in the specified 
geographical region. NMFS has also renamed the North Atlantic Right 
Whale Vessel Strike Avoidance Plan requirement to the Marine Mammal 
Vessel Strike Avoidance Plan to more accurately reflect that the plan 
does not solely apply to North Atlantic right whales.
    In consideration of commenters' concerns regarding strengthening 
mitigation measures to avoid vessel strike, NMFS has removed the 
requirement in Sec.  217.324(b)(14) from the proposed rule for any 
underway vessel to avoid speed over 10 kn (18.5 km/hour) or abrupt 
changes in course direction until an animal is on a path away from the 
separation distance. The current requirement in Sec.  217.324(b) 
requires vessels to steer a course away from, reduce speed and shift 
engine to neutral if an animal is within the separation distance.
    NMFS has clarified the requirement in Sec.  217.324(b)(7) from the 
proposed rule that a North Atlantic right whale detection triggers a 
speed restriction for all transiting vessels within 10 km for a 24-hour 
period (previously 12-hour period). This was previously specific to 
Slow Zones (i.e., Dynamic Management Areas (DMAs) or acoustically-
triggered slow zone), and Seasonal Management Areas (SMAs). NMFS has 
also added a requirement that vessels must not travel over 10 kn from 
November 1 through April 30, annually, within the specified 
geographical region. This measures also now includes a sub-measure that 
states: if vessel(s) are traveling at speeds 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, LOA Holder must monitor the 
transit corridor in real-time with PAM prior to and during transits. If 
a North Atlantic right whale is detected via visual observation or PAM 
detection within or approaching the transit corridor, all vessels in 
the transit

[[Page 52241]]

corridor must travel at 10 kn (11.5 mph) or less for 24 hours following 
the detection. Each subsequent detection must trigger a 24-hour reset. 
A slowdown in the transit corridor expires when there has been no 
further visual or acoustic detection in the transit corridor in the 
past 24 hours. The transit corridor must be defined in the Marine 
Mammal Vessel Strike Avoidance Plan.
    NMFS has clarified PAM boundaries for detections of North Atlantic 
right whales that trigger a delay in the commencement of foundation 
installation and UXO/MEC detonation.
    In response to comments and to align with the BiOp, NMFS has added 
a requirement that two functional noise attenuation devices that reduce 
noise levels to the modeled harassment isopleths assuming a 10-dB 
attenuation, must be used during foundation installation (impact and 
vibratory pile driving, drilling) and UXO/MEC detonation.
    NMFS has clarified requirements for PAM systems, including a 
requirement for the PAM system to be able to detect a vocalization of 
North Atlantic right whales up to 12 km away in Sec.  217.324(c). In 
Sec. Sec.  217.324 and 217.325, NMFS has removed NMFS-approved PAM 
systems(s) terminology as NMFS approves PAM plans and not PAM systems.
    To align with the BiOp, NMFS has increased the number of on-duty 
PSOs on the foundation installation platform and the number of PSO-
dedicated vessels to improve the reliability of marine mammal detection 
from the platform in Sec.  217.324(c). The minimum number of PSOs per 
platform during UXO/MEC detonation has been increased to three in Sec.  
217.324(d).
    NMFS added requirements related to conducting and reporting on 
Thorough and Abbreviated SFV to align with the BiOp in Sec.  
217.324(c)-(d).
    NMFS has clarified requirements for clearance zones, shutdown 
zones, deactivating acoustic sources when not in use, PSO activity and 
communication requirements, and vessel operator communication 
requirements, applying to HRG surveys operating sub-bottom profilers 
(SBPs) in Sec.  217.324(e) to ensure compliance and proper 
implementation of the regulations.
    NMFS has added a requirement for acoustic source ramp-ups to be 
scheduled in order to minimize the time spent with the source 
activated.
    For fishery monitoring surveys in Sec.  217.324(f), NMFS has 
clarified language on emptying survey gear, gear deployment timing, 
trawl tow times and speed, and visual monitoring efforts.
    The following changes are reflected in Sec.  217.325, 
``Requirements for monitoring and reporting,'' and the associated 
Monitoring and Reporting section of the preamble to this final rule:
    NMFS has added a requirement for confirmation of all required 
training to be documented on a training course log sheet and reported 
to NMFS before initiating project activities. 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. NMFS has added a 
requirement that the marine mammal monitoring team must monitor 
available sources of information on North Atlantic right whale presence 
in or near the Project no less than every 4 hours.
    NMFS has clarified PAM operator qualifications as well as PSO and 
PAM training requirements in Sec.  217.235 to ensure compliance and 
proper implementation of regulations. This additional clarification 
includes detailed requirements for prior experience, being independent 
observers, ability for PAM operators to review and classify acoustic 
detections in real-time, PSO marine mammal identification and behavior 
training to focus on species specific to the North Western Atlantic 
Ocean, and PSO and PAM training to have been completed within the past 
5 years and have included a certificate of course completion. NMFS has 
specified that Avangrid must submit the names of PSOs and PAM operators 
previously approved by NMFS at least 30 days prior to commencement of 
the specified activities and 15 days prior to when new PSO/PAM 
operators are required after activities have commenced.
    NMFS has specified the following additional details in Sec.  
217.325(b) to clarify PSO and PAM operator requirements in order to 
ensure compliance and proper implementation of regulations: PSOs must 
monitor for marine mammals prior to, during, and following impact pile 
driving, vibratory pile driving, drilling, UXO/MEC detonation and HRG 
surveys that use sub-bottom profilers and monitoring must be done while 
free from distractions; all on-duty PSOs and on-duty PAM operator(s) 
are to remain in real-time contact with the on-duty construction 
personnel responsible for implementing mitigations; and the PAM 
operator must inform the Lead PSO(s) on duty of animal detections 
approaching or within applicable ranges of interest to the activity 
occurring via the data collection software system.
    NMFS added requirements related to conducting and reporting on SFV 
(Thorough and Abbreviated) to align with the BiOp in Sec.  217.325(c), 
(d), and (f).
    NMFS added a requirement to Sec.  217.325(c) for a Nighttime 
Monitoring Plan if Avangrid intends to request nighttime foundation 
installation. No nighttime foundation installation can occur until NMFS 
reviews and approves the plan.
    NMFS clarified requirements for the PAM Plan and Marine Mammal 
Monitoring Plan to align with the BiOp in Sec.  217.325(d).
    NMFS has clarified the reporting requirements, such as, the format 
of dates must be in the MM/DD/YYYY format, location information must be 
provided in Decimal Degrees and with the coordinate system information, 
and which email addresses a report must be submitted to.
    In consideration of public comments with concerns for 
underestimating takes by Level A harassment and Level B harassment, 
NMFS has added a requirement that if at any time during the Project 
Avangrid 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, Avangrid must inform NMFS Office of Protected 
Resources within one business day of becoming aware of this issue or 
before the next pile is driven, whichever comes first.
    NMFS has added specific regional contact information for reporting 
North Atlantic right whale sightings and stranded, entangled, injured, 
or dead marine mammals.
    NMFS had added a requirement to report observations of any large 
whale (other than North Atlantic right whales) to the WhaleAlert app.
    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.

Description of Marine Mammals in the Geographic Area

    As noted in the Changes from the Proposed to Final Rule section, 
updates have been made to the abundance estimate for North Atlantic 
right whales and to the UME summaries of multiple species. These 
changes are described in detail in the sections below and, otherwise, 
the marine mammal

[[Page 52242]]

information has not changed since the proposed rule.
    Thirty-eight marine mammal species under NMFS' jurisdiction have 
geographic ranges within the western North Atlantic OCS (Hayes et al., 
2023). Sections 3 and 4 of Park City Wind's (now Avangrid's) ITA 
application summarize available information regarding status and 
trends, distribution and habitat preferences, and behavior and life 
history of the potentially affected species (Park City Wind, 2022). 
Additional information regarding population trends and threats may be 
found in NMFS's SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general 
information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species and stocks for which take is expected and 
may be authorized for this action, and summarizes information related 
to the population or stock, including regulatory status under the MMPA 
and ESA, and provides the potential biological removal (PBR), where 
known. PBR is defined by the MMPA as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population (16 U.S.C. 1362(20)). While no mortality is 
anticipated or may be authorized, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
table 2 are the most recent available at the time of publication and 
are available in NMFS' 2023 draft SARs available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.

                              Table 2--Marine Mammal Species That May Occur in the Project Area and Be Taken by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        ESA /MMPA  status;   Stock abundance  (CV,               Total
             Common name                Scientific name \1\             Stock            strategic  (Y/N)      Nmin, most recent       PBR     annual  M/
                                                                                                \2\          abundance survey) \3\               SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale \5\..  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             340 (0, 337, 2021);           0.7       27.2
                                                                                                             356 (346-363, 2022).
Family Balaenopteridae (rorquals):
    Blue whale......................  Balaenoptera musculus..  Western North Atlantic.  E, D, Y             UNK (UNK; 402; 1980-          0.8          0
                                                                                                             2008).
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24; 5,573;            11       2.05
                                                                                                             2021).
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, Y             1,396 (0; 1,380; 2016)         22      12.15
    Minke whale.....................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31; 17,002;         170        9.4
                                       acutorostrata.           Coastal.                                     2021).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02; 3,098;           6.2        0.6
                                                                                                             2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             5,895 (0.29; 4,639;          9.28        0.2
                                                                                                             2021).
Family Kogiidae:
    Dwarf sperm whale...............  Kogia sima.............  Western North Atlantic.  -, -, N             9,474 (0.36, 7,080,            57        UNK
                                                                                                             2021).
    Pygmy sperm whale...............  Kogia breviceps........  Western North Atlantic.  -, -, N             9,474 (0.36, 7,080,            57        UNK
                                                                                                             2021).
Family Ziphiidae:
    Cuvier's beaked whale...........  Ziphius cavirostris....  Western North Atlantic.  -, -, N             4,670 (0.24, 3,817,            38        0.2
                                                                                                             2021).
    Blainville's beaked whale.......  Mesoplodon densirostris  Western North Atlantic.  -, -, N             2,936 (0.26, 2,374,            24        0.2
                                                                                                             2021).
    Gervais' beaked whale...........  Mesoplodon europaeus...  Western North Atlantic.  -, -, N             8,595 (0.24, 7,022,            70          0
                                                                                                             2021).
    Sowerby's beaked whale..........  Mesoplodon bidens......  Western North Atlantic.  -, -, N             492 (0.50, 340, 2021).        3.4          0
    True's beaked whale.............  Mesoplodon mirus.......  Western North Atlantic.  -,-,N               4,480 (0.34, 3,391,            34        0.2
                                                                                                             2021).
    Northern bottlenose whale \6\...  Hyperoodon ampullatus..  Western North Atlantic.  -, -, N             UNK (UNK, UNK, 2016)..        UNK          0
Family Delphinidae:
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             31,506 (0.28, 25,042,         250          0
                                                                                                             2021).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71, 54,443,         544         28
                                                                                                             2021).
    Common bottlenose dolphin \7\...  Tursiops truncatus.....  Western North Atlantic   -, -, N             64,587 (0.24, 52,801,         507         28
                                                                Offshore.                                    2021).
    Clymene dolphin.................  Stenella clymene.......  Western North Atlantic.  -, -, N             21,778 (0.72, 12,622,         126          0
                                                                                                             2021).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             93,100 (0.56; 59,897;       1,452        414
                                                                                                             2021) \8\.
    Long-finned pilot whales........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.30; 30,627;         306        5.7
                                                                                                             2021).
    Short-finned pilot whale \8\....  Globicephala             Western North Atlantic.  -, -, Y             18,726 (0.33, 14,292,         143        218
                                       macrorhynchus.                                                        2021).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             44,067 (0.19, 30,662,         307         18
                                                                                                             2021).
    False killer whale..............  Pseudorca crassidens...  Western North Atlantic.  -, -, N             1,298 (0.72, 775,             7.6          0
                                                                                                             2021).
    Fraser's dolphin \9\............  Lagenodelphis hosei....  Western North Atlantic.  -, -, N             UNK (UNK, UNK, 2021)..        UNK          0

[[Page 52243]]

 
    Killer whale\10\................  Orcinus orca...........  Western North Atlantic.  -, -, N             UNK (UNK, UNK, 2016)..        UNK          0
    Melon-headed whale\11\..........  Peponocephala electra..  Western North Atlantic.  -, -, N             UNK (UNK, UNK, 2021)..        UNK          0
    Pantropical spotted dolphin.....  Stenella attenuata.....  Western North Atlantic.  -, D, N             2,757 (0.50, 1,856,            19          0
                                                                                                             2021).
    Pygmy killer whale \12\.........  Feresa attenuata.......  Western North Atlantic.  -, -, N             UNK (UNK, UNK, 2021)..        UNK          0
    Rough-toothed dolphin \13\......  Steno bredanensis......  Western North Atlantic.  -, -, N             UNK (UNK, UNK, 2021)..      undet          0
    Spinner dolphin.................  Stenella longirostris..  Western North Atlantic.  -, D, N             3,181 (0.65, 1,930,            19          0
                                                                                                             2021).
    Striped dolphin.................  Stenella coeruleoalba..  Western North Atlantic.  -, -, N             48,274 (0.29, 38,040,         529          0
                                                                                                             2021).
    White-beaked dolphin............  Lagenorhynchus           Western North Atlantic.  -, -, N             536,016 (0.31,              4,153          0
                                       albirostris.                                                          415,344, 2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             85,765 (0.53, 56,420,         649        145
                                                                Fundy.                                       2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \14\..................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,911 (0.20, 23,624,       1,512      4,570
                                                                                                             2021).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08, 57,637,       1,729        339
                                                                                                             2018).
    Harp seal.......................  Pagophilus               Western North Atlantic.  -, -, N             7.6M (UNK, 7.1M, 2019)    426,000    178,573
                                       grownlandicus.
    Hooded seal \15\................  Cystophora cristata....  Western North Atlantic.  -, -, N             UNK (UNK, UNK, n/a)...        UNK       1680
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies; Committee on Taxonomy, 2023)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS' marine mammal stock assessment reports can be found online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, vessel strike).
\5\ In the proposed rule (87 FR 79072, December 23, 2022), a population estimate of 368 was used which represented the best available science at the
  time of publication. However, since the publication of the proposed rule, a new estimate (n=340) was released in NMFS' draft 2023 SARs and has been
  incorporated into this final rule. The current draft SAR includes an estimated population (Nbest 340) based on sighting history through December 2021
  (89 FR 5495, January 29, 2024). In October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size
  based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023); Total annual
  average observed North Atlantic right whale mortality during the period 2017-2021 was 7.1 animals and annual average observed fishery mortality was
  4.6 animals. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means, accounting for
  undetected mortality and serious injury.
\6\ The total number of northern bottlenose whales off the eastern U.S. coast is unknown. Present data are insufficient to calculate a minimum
  population estimate for this species (89 FR 5495, January 29, 2024).
\7\ As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form.
\8\ A key uncertainty exists in the population size estimate for this species based upon the assumption that the logistic regression model accurately
  represents the relative distribution of short-finned vs. long-finned pilot whales (89 FR 5495, January 29, 2024).
\9\ The total number of Fraser's dolphins off the eastern U.S coast is unknown. Present data are insufficient to calculate a minimum population estimate
  for this stock (89 FR 5495, January 29, 2024).
\10\ The total number of killer whales off the eastern U.S coast is unknown. Present data are insufficient to calculate a minimum population estimate
  for this species (89 FR 5495, January 29, 2024).
\11\ The population size of this species is unknown as this species was rarely sighted during surveys. Present data are insufficient to calculate a
  minimum population estimate for this stock (89 FR 5495, January 29, 2024).
\12\ The total number of pygmy killer whales off the eastern U.S coast is unknown. Present data are insufficient to calculate a minimum population
  estimate for this stock (89 FR 5495, January 29, 2024).
\13\ The abundance estimate for this species is based upon the average of the 2011 and 2016 abundance estimates. However, uncertainties in the abundance
  estimate exist due to the low number of sightings (n=1 in 2011; n=0 in 2016), variance in encounter rates, and uncertainty in estimation of detection
  probability (89 FR 5495, January 29, 2024).
\14\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 394,311. The annual M/SI value given is for the total stock (89 FR 5495, January 29, 2024).
\15\ There is uncertainty in available population estimates due to limited surveys, limited reproductive data, and uncertainty in stock relationships
  and harvest statistics (89 FR 5495, January 29, 2024).

    In addition to the species listed in table 2, the Florida manatees 
(Trichechus manatus; a sub-species of the West Indian manatee) has been 
previously documented as an occasional visitor to the Northeast region 
during summer months (U.S. Fish and Wildlife Service (USFWS), 2019). 
However, manatees are managed by the USFWS and are not considered 
further in this document.

[[Page 52244]]

    As described in the proposed rule, the applicant also requested 
take for beluga whales (Delphinapterus leucas), however, there is no 
beluga whale stock designated under the MMPA along the U.S. Eastern 
Seaboard as it is a more northerly species; therefore, they are not 
considered further in this document. A detailed description of the 
species likely to be affected by the Project, including brief 
introductions to the species and relevant stocks, information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the application and the proposed rule (88 
FR 37606, June 8, 2023). Other than adjustments to population 
statistics (e.g., North Atlantic right whale population abundance) and 
UME updates, we are not aware of any 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 37606, June 8, 2023). Please also refer to NMFS' 
website (https://www.fisheries.noaa.gov/find-species) for generalized 
species accounts.
    Since the publication of the proposed rule, the following updates 
have occurred to the below species in regards to general information or 
their active UMEs.

North Atlantic Right Whale

    In January 2024, NMFS released its draft 2023 SARs which updated 
the population estimate (Nbest) of North Atlantic right 
whales to 340 individuals (a decrease from the population estimate in 
the proposed rule (n=368) but an increase from the final 2022 SARs 
(n=338); the annual M/SI value dropped from the final 2022 SAR of 31.2 
to 27.2 in the draft 2023 SAR. Beginning in the 2022 SARs, the M/SI for 
North Atlantic right whale included the addition of estimated 
undetected mortality and serious injury, which had not been previously 
included in the SAR. The current 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).
    As described in the proposed rule, elevated North Atlantic right 
whale mortalities have occurred since June 7, 2017, along the U.S. and 
Canadian coast, with the leading category for the cause of death for 
this UME determined to be ``human interaction,'' specifically from 
entanglements or vessel strikes. Since publication of the proposed 
rule, the number of animals considered part of the UME has increased. 
As of April 12, 2024, there have been 39 confirmed mortalities (dead, 
stranded, or floaters), 1 pending mortalities, and 34 seriously injured 
free-swimming whales for a total of 74 whales. The UME also considers 
animals with sublethal injury or illness (called ``morbidity''; n=52) 
bringing the total number of whales in the UME from 74 to 126. More 
information about the North Atlantic right whale 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 221 known cases (as of 
May 3, 2024). There has been no update to this UME since the proposed 
rule. 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 2022-2023 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 May 3, 2024, a total of 168 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. 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 closed after the 
proposed rule. The UME Investigative Team reviewed necropsy, 
histopathology, and diagnostic findings. 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 were 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; 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 area of the Project, 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

[[Page 52245]]

have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok 
and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et 
al. (2007) recommended that marine mammals be divided into functional 
hearing groups based on directly measured or estimated hearing ranges 
on the basis of available behavioral response data, audiograms derived 
using auditory evoked potential techniques, anatomical modeling, and 
other data. Note that no direct measurements of hearing ability have 
been successfully completed for mysticetes (i.e., low-frequency 
cetaceans). Subsequently, NMFS (2018) described generalized hearing 
ranges for these marine mammal hearing groups. Generalized hearing 
ranges were chosen based on the approximately 65-dB threshold from the 
normalized composite audiograms, with the exception for lower limits 
for low-frequency cetaceans where the lower bound was deemed to be 
biologically implausible and the lower bound from Southall et al. 
(2007) retained. Marine mammal hearing groups and their associated 
hearing ranges are provided in table 3.

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

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    Exposure to underwater noise and explosive detonations from the 
Project's specified activities have the potential to result in Level A 
harassment or Level B harassment of marine mammals in the specified 
geographical region, but no serious injury or mortality. The proposed 
rule (88 FR 37606, June 8, 2023) included a discussion of the effects 
of anthropogenic noise on marine mammals and the potential effects of 
underwater noise and explosive detonations from the Project's specified 
activities on marine mammals and their habitat. While some new 
literature regarding marine mammal distribution and habitat use has 
been published since publication of the proposed rule (e.g., Holdman et 
al., 2023; Meyer-Gutbrod et al., 2023; Van Parijs et al., 2023; 
Westwell et al., 2024), there is no new information that NMFS is aware 
of that changes the analysis in the proposed rule. We provide a summary 
of these papers below.
    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.
    Meyer-Gutbrod et al. (2023) studied North Atlantic right whale 
sightings from 1990-2018 to examine patterns in monthly habitat use in 
12 high-use areas to broadly characterize new seasonal habitat-use 
patterns across the core North Atlantic right whale range. As North 
Atlantic right whale foraging habitat selection is driven by complex 
spatial and temporal patterns (e.g., prey abundance), abundances of 
Calanus finmarchicus (a species of copepod and a component of the 
zooplankton found in the northern Atlantic Ocean) and Calanus 
hyperboreus (species of copepod found in the Arctic Ocean and northern 
Atlantic Ocean) were also analyzed for decadal variations in the North 
Atlantic right whale foraging habitats. The research found that in 
comparison to the 2000s, the 1990s and the 2010s were similar in that 
North Atlantic right whale sightings (i.e., Sightings Per Unit Effort 
(SPUE)) declined in the foraging habitats of the Gulf of Maine and 
Scotian Shelf during the seasons when abundance of C. finmarchicus was 
relatively low (spring, summer, fall). The drop in sightings is 
associated with extended duration of habitat use by North Atlantic 
right whales in Cape Cod Bay into the late spring and increased use of 
Southern New England waters and the Gulf of St. Lawrence in the spring 
and summer in the 2010s. Summertime declines in the 2010s for copepod 
abundances in the traditional foraging habitat (e.g., Gulf of Maine) 
indicate that the increased use of the Gulf of St. Lawrence in more 
recent years is driven by a decline in prey in traditional foraging 
habitats rather than by an increase in prey in the new foraging 
habitat. Overall, while some patterns in seasonal habitat use remained 
consistent across all three decades, including the winter migration to 
the Southeast US calving ground and early spring foraging in Cape Cod 
Bay,

[[Page 52246]]

there were notable differences in the seasonality and persistence of 
North Atlantic right whales in some foraging habitats across the study 
period which indicate that the North Atlantic right whale distribution 
patterns are shifting.
    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 (harbour 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 North Atlantic right whale 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 percent) 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.
    Moreover, new data also supports our inclusion of certain 
mitigation measures in the proposed and this final rule. For example, 
Crowe et al. (2023) discussed the use and importance of real-time data 
for detecting North Atlantic right whale. The shift in North Atlantic 
right whale habitat use motivated the integration of additional ways to 
detect the presence of North Atlantic right whales 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, NMFS evaluated these measures and 
added details for clarity or updated the reporting mechanisms, such as 
in the case of sighting an injured North Atlantic right whale. Davis et 
al. (2023) analyzed North Atlantic right whale individual upcalls from 
2 years of acoustic recordings in southern New England which showed 
that North Atlantic right whale were detected at least 1 day every week 
throughout both years, with highest North Atlantic right whale presence 
from October to April. Within SNE, on average, 95 percent of the time 
North Atlantic right whales 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 percent 
likelihood of hearing a North Atlantic right whale, compared to 74 
percent at 18 h. Therefore, monitoring for at least 24 h prior to 
activity will increase the likelihood of detecting an up-calling North 
Atlantic right whale.
    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 m. 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 Block 
Island wind farm, likely due to vibrations associated with the 
monopiles structure (HDR, Inc., 2023). We note 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 Avangrid 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 North Atlantic right whales 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 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). This report is specific to the Nantucket 
Shoals region which is unlikely to be influenced by any long-term 
operational effects of the 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's proposal to issue a 5-year rule to Avangrid 
and BOEM's approval of the Construction and Operation Plan (COP) which 
covers the 30 years of the Project's operation and subsequent 
decommissioning.
    Similar to the discussion presented in the proposed rule, the BiOp 
stated the Project will produce a wind wake from operation of the 
turbines and that the foundations themselves will lead to disruptions 
in local conditions; the scale of these effects is expected to

[[Page 52247]]

range from hundreds of meters and up to 1 km from each foundation and 
the changes in conditions may alter the distribution of nutrients, 
primary production, and plankton. The BiOp concluded it is not expected 
that the impacts to oceanic conditions resulting from the Project will 
affect the oceanographic forces transporting plankton into the area 
from the south and east; however, there may be effects on the 
distribution of plankton more locally. The construction and operation 
of the Project is not expected to alter this broad current pattern, and 
thus NMFS expects any alteration of the biomass of plankton in the 
region, and therefore, the total food supply, to be so small that 
adverse effects on ESA-listed species are not reasonably certain to 
occur.
    Overall, there is no new scientific information regarding the 
general anticipated effects of OSW construction on marine mammals and 
their habitat that was not discussed in the proposed rule. The 
information and analysis regarding the potential effects on marine 
mammals and their habitat is incorporated by reference and included in 
the proposed rule is referenced and used for this final rule and is not 
repeated here; please refer to the proposed rule (88 FR 37606, June 8, 
2023).

Estimated Take

    As noted in the Changes from the Proposed to Final Rule section, 
changes to the estimated and allowable take (i.e., take that may be 
authorized) for several species have been made since publication of the 
proposed rule based on new information from Avangrid, recommendations 
received during the public comment period, and the best available 
science. This section provides an estimate of the number of incidental 
takes that may be authorized through this rule, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determination. The analysis related to take incidental to HRG surveys, 
UXO/MEC detonation, and rare species is unchanged since the proposed 
rule. However, as described above in the Changes from the Proposed 
section, Avangrid re-evaluated the sound fields generated during 
foundation installation and corresponding exposure estimates which is 
further described in the foundation installation take section below. 
Takes allowed under this rule would primarily be by Level B harassment, 
as use of the acoustic sources (i.e., impact and vibratory pile 
driving, drilling, UXO/MEC detonation, site characterization surveys) 
are expected 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 constituting Level A harassment 
to occur in select marine mammal species incidental to the specified 
activities (i.e., impact pile driving and UXO/MEC detonation). For this 
action, this potential is largely limited to, though not exclusive to, 
mysticetes due to their hearing sensitivities and the nature of the 
activities. As described below, the larger distances to the PTS 
thresholds, when considering marine mammal weighting functions, 
demonstrate this potential. For mid-frequency hearing sensitivities, 
when thresholds and weighting and the associated PTS zone sizes are 
considered, the likelihood for PTS from the noise produced by the 
Project is less than that for mysticetes. 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 may be authorized incidental to the 
Project. Below, we describe how the take was estimated.
    Generally speaking, we estimate take by considering: (1) acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment (as well as impulse metric 
(Pascal-second) 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. We note that while these basic factors can contribute to a 
basic calculation to provide an initial prediction of takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available. Below, we describe the factors considered here in 
more detail and present the 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 identifying the received level of 
in-air sound above which exposed pinnipeds would likely be behaviorally 
harassed. A summary of all NMFS' thresholds can be found at (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance).
    Level B harassment--Though significantly driven by received level, 
the onset of behavioral isturbance 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 state 
of the receiving animals (e.g., 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 RMS pressure received levels 
(SPL) of 120 dB (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.
    Avangrid's construction activities include the use of continuous 
(e.g., vibratory pile driving, drilling) and intermittent (e.g., impact 
pile driving and HRG acoustic sources) sources; therefore, the 120 and 
160 dB re 1 [mu]Pa (RMS) thresholds are applicable.

[[Page 52248]]

    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 constituting 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 
sources). As dual metrics, NMFS considers onset of PTS constituting 
Level A harassment to have occurred when either one of the two metrics 
is exceeded (i.e., metric resulting in the largest isopleth). The 
Project includes the use of impulsive and non-impulsive sources.
    These thresholds are provided in table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                                              Table 4--Onset of PTS
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds\*\ (Received Level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lp0-pk,flat: 219    Cell 2: LE,p, LF,24h: 199 dB.
                                          dB; LE,p, LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lp,0-pk,flat: 230   Cell 4: LE,p, MF,24h: 198 dB.
                                          dB; LE,p, MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lp,0-pk,flat: 202   Cell 6: LE,p, HF,24h: 173 dB.
                                          dB; LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lp,0-pk.flat: 218   Cell 8: LE,p,PW,24h: 201 dB.
                                          dB; LE,p,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lp,0-pk,flat: 232   Cell 10: LE,p,OW,24h: 219 dB.
                                          dB; LE,p,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
 * Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating
  PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
  associated with impulsive sounds, these thresholds are recommended for consideration.
 Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
  exposure level (LE,p) has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to be
  more reflective of International Organization for Standardization standards (ISO, 2017). The subscript
  ``flat'' is being included to indicate peak sound pressure are flat weighted or unweighted within the
  generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative
  sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF,
  and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The
  weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying
  exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate
  the conditions under which these thresholds will be exceeded.

Explosives Source Thresholds

    Based on the best scientific information available, NMFS uses the 
acoustic and pressure thresholds indicated in table 5 to predict the 
onset of PTS and TTS during UXO/MEC detonation. For a single detonation 
(within a 24-hour period), NMFS relies on the TTS onset threshold to 
assess the likelihood for Level B harassment. The final rule is 
conditioned such that Avangrid would limit detonations to one per day 
and would be limited to daylight hours only.

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

    Additional thresholds for 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) as 
UXO/MEC detonations, in general, have potential to result in mortality 
and non-auditory injury (table 6). Marine mammal lung injury criteria 
have been developed by the U.S. Navy (DoN (U.S. Department of the 
Navy), 2017), and adopted by NMFS, and are based on the mass of the 
animal and the depth at which it is present in the water column due to 
blast pressure. This means that specific decibel levels for each 
hearing group are not provided and instead, the criteria are presented 
as equations that allow for incorporation of specific mass and depth 
values. The GI tract injury threshold is based on peak pressure. The 
modified Goertner equations below represent the potential onset of lung 
injury and GI tract injury (table 6).

[[Page 52249]]



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

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

Marine Mammal Density and Occurrence

    In this section we provide 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 from 1992 to 2022 
obtained in a collaboration between Duke University, the Northeast 
Regional Planning Body, the University of North Carolina Wilmington, 
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et 
al., 2016a, 2016b, 2017, 2018, 2020, 2021a, 2021b, 2023), represent the 
best available science regarding marine mammal densities in the Project 
Area. More recently, these data have been updated with new modeling 
results and include density estimates for pinnipeds (Roberts et al., 
2016b, 2017, 2018, 2023). Density data are subdivided into five 
separate raster data layers for each species, including: Abundance 
(density); 95 percent Confidence Interval of Abundance; 5 percent 
Confidence Interval of Abundance; Standard Error of Abundance; and 
Coefficient of Variation of Abundance.
    The methods for calculating monthly, seasonal and annual densities 
have not changed since the proposed rule. For foundation installation, 
the width of the perimeter around the activity area used to select 
density data from the Roberts et al., 2022 models was based on the 
largest 10-dB attenuated exposure range (ER95; the 
Level B harassment range) applicable to that activity. The applicant 
calculated monthly densities for each species using grid cells within 
the lease area and a perimeter around the lease area that represented 
the ER95 ensonified area for each sound-producing 
activity. The mean density for each month was determined by calculating 
the unweighted mean of all 5 x 5 km grid cells partially or fully 
within the analysis polygon. Densities were computed monthly for the 
May-December period to coincide with proposed foundation pile driving 
activities. In cases where monthly densities were unavailable, annual 
mean densities were used instead. For cases with vibratory setting of 
piles followed by impact pile driving, and impact pile driving alone 
(i.e., all pile driving scenarios), densities were calculated within 
buffered polygons of various ranges around the Lease Area perimeter. 
The following ranges were pre-selected: 10, 25, and 50 km. For each 
species, foundation type, and attenuation level, the most appropriate 
density perimeter was selected from this list. The range was selected 
using the 95th percentile exposure range (ER95) for 
each case, using the next highest range. For example, if the 
ER95 was 8.5 km, the 10 km perimeter would be used. 
In cases where the ER95 was larger than 50 km, the 
50-km perimeter was used. The 50 km limit is derived from studies of 
mysticetes that demonstrate received levels, distance from the source, 
and behavioral context are known to influence the probability of 
behavioral response (Dunlop et al., 2017).
    For drilling, it was assumed that the activity would occur in three 
areas of interest: J1, M1, and M2 (i.e., three modeled locations). The 
density perimeter was determined using the longest 10-dB attenuated 
95th percentile acoustic range to the behavioral threshold 
(R95) for all locations, rounded up to the nearest 5 
km, and then applied around the entire lease area (i.e., 7.1 km rounded 
up to 10 km). Monthly densities were calculated for each species as the 
average of the densities from all Roberts et al., 2022 model grid cells 
that overlap partially or completely with the area of interest. Cells 
entirely on land were not included, but cells that overlap only 
partially with land were included.
    As described in the proposed rule, for UXO/MEC detonations, the 
applicant commissioned a UXO/MEC desktop study in which a comprehensive 
historic analysis of all activities which may have contributed to 
potential UXO/MEC presence in the project area. The applicant evaluated 
the risk of encountering the potential UXO/MECs and identified areas of 
moderate risk of UXO/MEC presence then commissioned an acoustic 
modeling study, as described in the proposed rule. As a result of this 
process, the largest SEL-based TTS-onset acoustic ranges across all 
hearing groups was applied it to the moderate UXO/MEC risk areas, 
resulting in a 14.1-km perimeter for the shallow water segment of the 
OECC and a 13.8-km density perimeter for the deep water segment of the 
OECC as well as the SWDA.
    For HRG surveys, the applicant applied all grid cells within the 
survey corridor. No buffer was applied given the small distance to 
Level B

[[Page 52250]]

harassment (<200 m) during surveys compared to the grid cell size in 
the Roberts et al., 2022 density models (5 x 5 km). To estimate 
densities for the HRG surveys occurring both within the Lease Area and 
within the export cable routes, the applicant mapped density data from 
Roberts et al. (2023) within the boundary of the Project Area using 
geographic information systems. The applicant then averaged maximum 
monthly densities (as reported by Roberts et al., 2023) by season over 
the survey duration (for winter (December through February), spring 
(March through May), summer (June through August), and fall (September 
through November)) within the HRG survey area. The maximum average 
seasonal density, for each species, was then carried forward in the 
take calculations (table 6).
    For several marine mammal species, Roberts et al. (2023) does not 
differentiate by species and instead combines them into guilds. This is 
true for long-finned and short-finned pilot whales (pilot whale spp.), 
beaked whales, and harbor, harp, hooded, and gray seals (seals), where 
a pooled density by guild is the only value available from the data 
that is not partitioned by stock.
    Below, we describe 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.
    For previous modeling efforts' marine mammal densities, for long- 
and short-finned pilot whales, the guild density from Roberts et al. 
(2016a, 2022b) was scaled by the relative stock sizes based on the best 
available abundance estimate from the 2023 SARs (Hayes et al., 2022). 
Similarly, densities were provided for seals as a guild consisting 
primarily of harbor and gray seals (Roberts et al., 2016a, 2022b), gray 
and harbor seal densities were scaled by relative 2023 SARs (Hayes et 
al., 2022) abundance. For the recently updated modeling efforts--
vibratory setting followed by impact pile driving, impact pile driving 
alone, drilling, UXO/MEC detonations, and HRG when calculating 
exposures for individual pilot whale and seal species, the guild 
densities provided by Roberts et al. (2016a, 2022b) were scaled by the 
relative abundances of the species in each guild, using the best 
available estimates of local abundance, to get species-specific density 
estimates surrounding the Lease Area. In estimating local abundances, 
all distribution data from the two pilot whale species and three seal 
species were downloaded from the Ocean Biodiversity Information System 
(OBIS) data repository (available at https://obis.org/). After 
reviewing the available datasets, it was deemed that data available in 
OBIS in Rhode Island and Massachusetts waters are the best available 
for the three seal species because of their overlap with the Lease 
Area.
    For seals, OBIS reported 86 observations of gray seals, 129 
observations of harbor seals, and 93 observations of harp seals. 
Therefore, the proportions of 0.28 (86/308), 0.42 (129/308), and 0.30 
(93/308) were used to scale the seals' guild densities for the three 
seal species, respectively. The best data available for pilot whales 
came from AMAPPS data in Rhode Island and Massachusetts waters. The 
proportions of 0.80 for long-finned and 0.20 for short-finned pilot 
whales were used (Palka et al., 2021).
    For uncommon species, the predicted densities from the Roberts et 
al., 2022 models 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, densities were not used but the take request is 
based on the species' average group size (tables 10 and 11). When this 
occurred, the mean group sizes used to correct Level B harassment take 
estimates, as shown in tables 10 and 11, for modeled cetacean species 
were derived from AMAPPS data from 2010-2019 NE shipboard distance 
sampling surveys (Palka et al., 2021) or informed by data from 2018-
2021 HRG surveys conducted near the project area (Vineyard Wind, 2018, 
2020a, 2020c, 2021a). Mean group size was calculated as the number of 
individuals divided by the number of groups from table 6-5 of Palka et 
al. (2021), which summarizes the 2010-2019 AMAPPS NE shipboard distance 
surveys. Summer sightings (June 1 to August 31) were chosen for these 
calculations because many species were not observed during fall 
surveys, and surveys were not conducted during spring or winter. When 
site assessment survey data showed a larger mean group size than was 
shown by the AMAPPS data, the site assessment survey group size was 
applied to take calculations.
    In cases where the exposure estimate was less than the mean group 
size, we predict that if one group member were to be exposed within the 
Level B harassment threshold, then it is reasonable to expect that all 
animals in the same group could be. Therefore, for species for which 
the annual number of predicted exposures above threshold was less than 
the mean group size, the annual number of expected takes was increased 
to one mean group size rounded up to the nearest integer. Correcting 
for group size for these species is used as a conservative measure to 
ensure that in the event of a close encounter with the species, a 
reasonably expected number of individuals (i.e., average group size) is 
accounted for in the take request.
    As described previously, density-based exposure calculations were 
not conducted for species considered rare in the project area. There 
are few to zero sightings of these species in the sources used above to 
calculate group size for the modeled species, so an alternative method 
had to be developed. Group size calculations for rare species used 
sighting data from the Ocean Biodiversity Information System database 
(OBIS, 2021). All records for each of the rare species were extracted 
from the OBIS database and then filtered to include only the area from 
approximately Cape Hatteras to the Gulf of Maine (35[deg] N to 43[deg] 
N) and from the coast (76[deg] W) out to the continental shelf edge 
(66[deg] W) to provide a more precise estimate of potential group size 
in the SWDA than would be expected using all OBIS records. The OBIS 
data were further filtered to remove stranding data, because the group 
size of stranded animals does not necessarily reflect the group size of 
free-ranging animals. The one exception to this was the hooded seal--
all records of this species in this area from the OBIS database were of 
single, stranded individuals, and thus a group size of one was used. 
This number is likely reflective of any free-swimming hooded seal that 
would occur in the area because this is an Arctic species and only 
single vagrant animals would be expected. Finally, data from digital 
aerial surveys were filtered out of this larger dataset because, 
although useful in determining presence/absence, these data provide no 
information on group size. The ``individualCount'' variable in the OBIS 
data was used to calculate minimum, maximum, and average group sizes 
for these rare species (table 16 in the ITA application).
    For many of these rare species, in particular the delphinids, 
maximum group sizes in OBIS can be in the hundreds or even up to 
thousands of animals. However, because these animals are rare in the 
project area, as it is not their preferred habitat, we think that they 
would be unlikely to form such large aggregations in this area and, 
further, it is unlikely that any such large aggregations would all swim 
with the small HRG Level B harassment zone. Thus, like with uncommon 
species, the average group size (rounded up to a whole number) based on 
the previously

[[Page 52251]]

described observer data was used in the take calculations for these 
species instead of the OBIS data to refine the group sizes to what had 
been previously observed in similar surveys. Group sizes relevant to 
the project area can be informed by PSO sightings during site 
characterization surveys (tables 10 and 11). For example, white-beaked 
dolphins were recorded in both 2019 and 2020 during HRG surveys in this 
area (Vineyard Wind, 2019, 2020) with the sighting of white-beaked 
dolphins in 2019 consisting of 30 animals. Other rare species 
encountered in the survey area during previous HRG surveys include 
false killer whales in 2019 (5 individuals) and 2021 (1 individual) 
(Vineyard Wind, 2020c, 2020b) and killer whales in 2022 (2 individuals; 
data not yet submitted). For these species the take estimates use the 
average observed group size from PSO sightings.
    Additional detail regarding the density and occurrence as well as 
the assumptions and methodology used to estimate take for specific 
activities is included in the activity-specific subsections below and 
in Section 6.1 of the ITA application. Average group sizes used in take 
estimates, where applicable, for all activities are provided in tables 
10 and 11.
    Tables 7, 8, and 9, below demonstrate all of the densities used in 
the exposure and take analyses. Densities differed depending on the 
types of piles installed and manner of take being assessed given the 
large spatial extent differences between ER95 for 
Level A harassment and Level B harassment. Tables 10 and 11 show the 
average marine mammal group sizes calculated based on the methods 
described above.

 Table 7--Mean Monthly Marine Mammal Density Estimates (Animals/100 km\2\) for Foundation Installation Impact Pile Driving, Vibratory Pile Setting Followed by Impact Pile Driving, and Drilling
                                                                  (Level B) Considering a 10-km Buffer Around the Lease Area a
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                              Annual    May-Dec
                            Species                                Jan      Feb      Mar      Apr      May      Jun      July     Aug      Sep      Oct      Nov      Dec      mean       mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\.................................    0.387    0.461    0.456    0.478    0.295    0.050    0.022    0.018    0.028    0.052    0.068    0.197     0.209      0.091
Fin whale \b\..................................................    0.215    0.166    0.107    0.164    0.272    0.256    0.438    0.366    0.227    0.057    0.051    0.141     0.205      0.226
Humpback whale.................................................    0.031    0.023    0.043    0.149    0.294    0.307    0.172    0.120    0.167    0.236    0.190    0.030     0.147      0.189
Minke whale....................................................    0.113    0.137    0.136    0.806    1.728    1.637    0.700    0.471    0.516    0.465    0.052    0.077     0.570      0.706
Sei whale \b\..................................................    0.039    0.021    0.044    0.112    0.192    0.052    0.013    0.011    0.019    0.036    0.079    0.065     0.057      0.058
Sperm whale \b\................................................    0.031    0.011    0.013    0.003    0.014    0.028    0.038    0.107    0.070    0.057    0.031    0.020     0.035      0.046
Atlantic spotted dolphin.......................................    0.001    0.000    0.001    0.003    0.018    0.025    0.031    0.054    0.273    0.431    0.179    0.018     0.086      0.128
Atlantic white-sided dolphin...................................    2.049    1.230    0.850    1.313    3.322    3.003    1.392    0.730    1.654    2.431    1.791    2.440     1.850      2.095
Bottlenose dolphin, offshore...................................    0.495    0.111    0.059    0.156    0.814    1.358    1.479    1.659    1.483    1.337    1.255    1.101     0.942      1.311
Common dolphin.................................................    7.130    2.455    1.884    3.258    6.254   13.905   10.533   14.446   25.703   22.676   11.103   10.774    10.844     14.424
Long-finned pilot whale \c\....................................    0.189    0.189    0.189    0.189    0.189    0.189    0.189    0.189    0.189    0.189    0.189    0.189     0.189      0.189
Short-finned pilot whale \c\...................................    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047     0.047      0.047
Risso's dolphin................................................    0.043    0.004    0.002    0.018    0.096    0.048    0.068    0.128    0.158    0.087    0.120    0.179     0.079      0.111
Harbor porpoise................................................   10.007   10.784   10.277    8.914    6.741    0.960    0.880    0.848    0.988    1.271    1.418    5.812     4.908      2.365
Gray seal \d\..................................................    5.395    5.603    4.176    3.203    4.716    0.806    0.088    0.094    0.226    0.500    1.768    4.534     2.592      1.591
Harbor seal \d\................................................    8.093    8.404    6.265    4.804    7.074    1.209    0.132    0.140    0.339    0.750    2.652    6.802     3.889      2.387
Harp seal \d\..................................................    5.781    6.003    4.475    3.432    5.053    0.864    0.094    0.100    0.242    0.535    1.894    4.858     2.778      1.705
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: All densities used for impact pile driving and drilling used the 10-km density table. For vibratory pile driving, for each species, foundation type, and attenuation level, the most
  appropriate density perimeter was used (10 km, 25 km, 50 km) based on the 95th percentile exposure range (ER95%). Therefore, vibratory pile driving exposure estimates used 10-km for Level A
  harassment and a mixture of the 25 and 50-km tables for Level B harassment.
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts et al., 2022).
\b\ Listed as Endangered under the ESA.
\c\ Density adjusted by relative local abundance.
\d\ Gray and harbor seal densities are the seals guild density scaled by their relative local abundances; gray seals are used as a surrogate for harp seals.


Table 8--Mean Monthly Marine Mammal Density Estimates (Animals/100 km\2\) for Vibratory Pile Setting Followed by Impact Pile Driving (Level B Harassment a) Considering a 25-km Perimeter Around
                                                                                         the Lease Area
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                              Annual    May-Dec
                            Species                                Jan      Feb      Mar      Apr      May      Jun      July     Aug      Sep      Oct      Nov      Dec      mean       mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\.................................    0.443    0.523    0.493    0.471    0.279    0.052    0.026    0.019    0.029    0.050    0.084    0.257     0.227      0.100
Fin whale \b\..................................................    0.213    0.161    0.118    0.165    0.272    0.247    0.391    0.316    0.221    0.068    0.056    0.146     0.198      0.214
Humpback whale.................................................    0.034    0.026    0.044    0.146    0.271    0.284    0.156    0.107    0.147    0.202    0.174    0.035     0.135      0.172
Minke whale....................................................    0.119    0.138    0.143    0.790    1.617    1.468    0.622    0.397    0.436    0.436    0.054    0.084     0.525      0.639
Sei whale \b\..................................................    0.036    0.022    0.045    0.115    0.186    0.053    0.013    0.010    0.017    0.035    0.080    0.066     0.056      0.058
Sperm whale \b\................................................    0.030    0.012    0.012    0.003    0.013    0.028    0.038    0.115    0.059    0.042    0.029    0.021     0.034      0.043
Atlantic spotted dolphin.......................................    0.001   <0.001   <0.001    0.003    0.027    0.042    0.034    0.055    0.282    0.577    0.181    0.020     0.102      0.152
Atlantic white-sided dolphin...................................    2.062    1.314    0.913    1.383    3.179    2.994    1.368    0.644    1.532    2.246    1.741    2.357     1.811      2.008
Bottlenose dolphin, offshore...................................    0.476    0.118    0.066    0.174    0.835    1.390    1.491    1.624    1.528    1.414    1.324    1.077     0.960      1.335
Common dolphin.................................................    7.388    2.799    2.212    3.612    6.556   13.827   10.602   13.820   23.538   24.395   12.882   11.716    11.112     14.667
Long-finned pilot whale \c\....................................    0.188    0.188    0.188    0.188    0.188    0.188    0.188    0.188    0.188    0.188    0.188    0.188     0.188      0.188
Short-finned pilot whale \c\...................................    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047    0.047     0.047      0.047
Risso's dolphin................................................    0.051    0.006    0.003    0.021    0.112    0.070    0.092    0.170    0.223    0.122    0.128    0.174     0.098      0.136
Harbor porpoise................................................    9.007    9.787    9.321    8.194    5.913    1.172    1.147    1.030    1.003    1.222    1.421    5.478     4.558      2.298
Gray seal \d\..................................................    5.553    5.401    3.946    3.485    5.109    1.750    0.315    0.296    0.497    0.881    2.108    4.485     2.819      1.930

[[Page 52252]]

 
Harbor seal \d\................................................    8.329    8.101    5.919    5.227    7.664    2.625    0.473    0.443    0.745    1.322    3.161    6.728     4.228      2.895
Harp seal \d\..................................................    5.949    5.786    4.228    3.733    5.474    1.875    0.338    0.317    0.532    0.944    2.258    4.806     3.020      2.068
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The Level B harassment exposure ranges (ER95%) for vibratory pile driving informed which density estimates were used. For species whose exposure range was more than 10 km and up to 25 km,
  this table's densities were used. For those more than 25 km, the 50 km densities were used.
Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts et al., 2022).
\b\ Listed as Endangered under the ESA.
\c\ Density adjusted by relative local abundance.
\d\ Gray and harbor seal densities are the seals guild density scaled by their relative local abundances; gray seals are used as a surrogate for harp seals.


   Table 9--Mean Monthly Marine Mammal Density Estimates (Animals/100 km\2\) for Vibratory Pile Setting Followed by Impact Pile Driving Considering a 50-km Perimeter Around the Lease Area a
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                              Annual    May-Dec
                            Species                                Jan      Feb      Mar      Apr      May      Jun      July     Aug      Sep      Oct      Nov      Dec      mean       mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\.................................    0.565    0.674    0.580    0.511    0.321    0.084    0.055    0.033    0.045    0.055    0.119    0.361     0.284      0.134
Fin whale \b\..................................................    0.194    0.158    0.142    0.169    0.256    0.246    0.383    0.316    0.244    0.093    0.060    0.128     0.199      0.216
Humpback whale.................................................    0.037    0.030    0.044    0.167    0.270    0.300    0.158    0.096    0.124    0.177    0.164    0.041     0.134      0.166
Minke whale....................................................    0.106    0.121    0.138    0.652    1.298    1.163    0.504    0.302    0.338    0.387    0.051    0.080     0.428      0.515
Sei whale \b\..................................................    0.030    0.024    0.045    0.123    0.181    0.059    0.016    0.009    0.014    0.034    0.076    0.058     0.056      0.056
Sperm whale \b\................................................    0.031    0.018    0.018    0.005    0.014    0.029    0.039    0.111    0.053    0.035    0.028    0.028     0.034      0.042
Atlantic spotted dolphin.......................................    0.002   <0.001   <0.001    0.006    0.073    0.182    0.052    0.084    0.449    1.025    0.238    0.027     0.178      0.266
Atlantic white-sided dolphin...................................    2.430    1.744    1.187    1.652    3.170    3.373    1.468    0.508    1.265    2.153    1.732    2.428     1.926      2.012
Bottlenose dolphin, offshore...................................    0.691    0.222    0.130    0.293    1.119    1.863    1.924    1.935    2.001    1.972    1.905    1.455     1.293      1.772
Common dolphin.................................................   10.202    5.127    4.047    5.422    8.950   18.237   13.103   14.754   22.465   30.637   18.664   15.127    13.895     17.742
Long-finned pilot whale \c\....................................    0.231    0.231    0.231    0.231    0.231    0.231    0.231    0.231    0.231    0.231    0.231    0.231     0.231      0.231
Short-finned pilot whale \c\...................................    0.058    0.058    0.058    0.058    0.058    0.058    0.058    0.058    0.058    0.058    0.058    0.058     0.058      0.058
Risso's dolphin................................................    0.110    0.023    0.009    0.040    0.230    0.227    0.299    0.488    0.642    0.322    0.190    0.218     0.233      0.327
Harbor porpoise................................................    6.731    7.481    7.192    6.632    4.590    1.481    1.388    1.038    0.852    1.130    1.383    4.273     3.681      2.017
Gray seal \d\..................................................    5.346    4.893    4.081    4.674    6.820    5.412    1.595    1.318    1.519    2.863    3.322    4.748     3.882      3.450
Harbor seal \d\................................................    8.019    7.339    6.121    7.011   10.229    8.118    2.392    1.977    2.279    4.295    4.982    7.122     5.824      5.174
Harp seal \d\..................................................    5.728    5.242    4.372    5.008    7.307    5.798    1.709    1.412    1.628    3.068    3.559    5.087     4.160      3.696
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts et al., 2022). Species with exposure ranges greater than 25 km
  used the densities in this table.
\b\ Listed as Endangered under the ESA.
\c\ Density adjusted by relative local abundance.
\d\ Gray and harbor seal densities are the seals guild density scaled by their relative local abundances; gray seals are used as a surrogate for harp seals.


                                                   Table 10--Average Marine Mammal Species Group Sizes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Group size
                Species                   Number of groups    Number of animals    Mean group size     Mean group size (PSO data) \b\    applied to take
                                          (AMAPPS data) \a\   (AMAPPS data) \a\   (AMAPPS data) \a\                                        request \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \d\.........                   2                   4                 2.0  1.5..............................                 2
Fin whale \d\..........................                 345                 533                 1.5  1.6..............................                 2
Humpback whale.........................                 157                 370                 2.4  1.5..............................                 3
Minke whale............................                  32                  32                 1.0  1.1..............................                 2
Sei whale \d\..........................                  20                  28                 1.4  1.0..............................                 2
Sperm whale \d\........................                 298                 491                 1.6  1.3..............................                 2
Atlantic spotted dolphin...............                  60               1,760                29.3  Not observed.....................                30
Atlantic white-sided dolphin...........                   3                  61                20.3  27.5.............................                28
Bottlenose dolphin, offshore...........                 345               3,865                11.2  17.9.............................                18
Common dolphin.........................                 444              19,802                44.6  14.0.............................                45
Long-finned pilot whale................                  41                 666                16.2  5.6..............................                17
Short-finned pilot whale...............                 230               2,050                 8.9  Not observed.....................                 9
Risso's dolphin........................                 486               3,131                 6.4  Not observed.....................                 7
Harbor porpoise........................                   4                   6                 1.5  1.3..............................                 2
Gray seal..............................                 145                 202                 1.4  1.2..............................                 2
Harbor seal............................                 145                 202                 1.4  2.0..............................                 2
Harp seal..............................                 145                 202                 1.4  Not observed.....................                 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Mean group size for cetaceans from 2010-2019 AMAPPS NE shipboard distance sampling surveys (table 6-5 of Palka et al. (2021)), and for seals from
  2010-2013 AMAPPS NE aerial surveys for all seals because most were not identified to species (table 19.1 of Palka et al. (2017)).
\b\ Mean group size from 2018-2021 PSO sightings data from 2018-2021 HRG surveys conducted by the Proponent (Vineyard Wind, 2018, 2020a, 2020c, 2021a).
\c\ Group size used for takes by Level B harassment correction is higher of AMAPPS data and PSO data rounded up to an integer.
\d\ Listed as Endangered under the ESA.


[[Page 52253]]


         Table 11--Average Marine Mammal Group Sizes Used for Rare Species in Take Estimate Calculations
----------------------------------------------------------------------------------------------------------------
                                         Minimum       Maximum                                   Group size used
               Species                 group size    group size    Mean group   Mean group size      In take
                                         (OBIS)        (OBIS)      size (OBIS)   (PSO reports)      estimates
----------------------------------------------------------------------------------------------------------------
Blue whale \a\......................             1             2           1.0               NA                1
Dwarf sperm whale...................             1             5           1.7               NA                2
Pygmy sperm whale...................             1             3           1.3               NA                2
Cuvier's beaked whale...............             1            10           2.8               NA                3
Blainville's beaked whale...........             3             4           3.3               NA                4
Gervais' beaked whale...............             1            12           3.5               NA                4
Sowerby's beaked whale..............             1            10           3.5               NA                4
True's beaked whale.................             2             5           2.9               NA                3
Northern bottlenose whale...........             2             7           3.7               NA                4
Clymene dolphin.....................             2         1,000         166.8               NA              167
False killer whale \b\..............             1            30           6.3                5                5
Fraser's dolphin....................            75           250         191.7               NA              192
Killer whale \b\....................             1            40           7.3                2                2
Melon-headed whale..................            20           210         108.8               NA              109
Pan-tropical spotted dolphin........             3           300          59.3               NA               60
Pygmy killer whale..................             2            10           4.5               NA                5
Rough-toothed dolphin...............             3            45          13.1               NA               14
Spinner dolphin.....................             1           170          50.4               NA               51
Striped dolphin.....................             1           500          63.8               NA               64
White-beaked dolphin \b\............             1           200          13.5               30               30
Hooded seal \c\.....................             1             1           1.0               NA                1
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the ESA.
\b\ Mean group size for these species from 2018-2021 PSO sightings data from 2018-2021 HRG surveys conducted by
  Park City Wind (Vineyard Wind, 2018, 2020a, 2020c, 2021a).
\c\ All records of hooded seals in the OBIS database for this region were strandings of single animals.

Modeling and Take Estimation

    Avangrid estimated take using both sophisticated sound and animal 
movement modeling to account for the movement and behavior of marine 
mammals and their exposure to the underwater sound fields produced 
during foundation impact and vibratory pile driving, as described 
below. Avangrid estimated the potential for harassment from drilling, 
HRG, and UXO/MEC detonations using a simplified ``static'' method 
wherein the take estimates are the product of density, ensonified area 
above the NMFS defined threshold (e.g., unweighted 160 dB SPLrms) 
levels, and number of days of installation. Animal movement modeling 
was not conducted for drilling, HRG, and UXO/MEC detonations.
    In some cases, the exposure estimates based on either the animal 
movement modeling or static methods described above directly informed 
the amount of take requested; in other cases, adjustments were made 
based on previously collected monitoring data or average group size as 
described above. In all cases, Avangrid requested, and NMFS may 
authorize, take based on the highest amount of exposures estimated from 
any given method.
    Below we present the take estimate methodologies associated with 
each activity.
WTG and ESP Foundation Installation
    WTG and ESP installation activities have the likelihood to result 
in harassment of marine mammals from pile driving and drilling.
    Since the proposed rule, the applicant refined the modeling 
methodology for impact pile driving and vibratory pile setting (section 
1.7 in the January 2024 Application Update). In the original modeling 
(impact pile driving for the July 2022 LOA application), JASCO modeled 
impact pile driving source characteristics using an energy-based 
parabolic equation (PE) model (JASCO's Marine Operations Noise Model 
(MONM)) to compute the near-field equivalent source before long range 
propagation. In this update, JASCO's Full-Wave PE RAM model (FWRAM) was 
used to compute the near-field equivalent source before the long-range 
propagation was computed (also using FWRAM). Using FWRAM over MONM is 
an improvement because it calculates full synthetic pressure waveforms 
(in the time domain), as opposed to summed energy independent of time. 
Like MONM, FWRAM is range dependent for range-varying marine acoustic 
environments and takes environmental inputs (bathymetry, water sound 
speed profile, and seabed geoacoustic profile) into account. FWRAM 
computes pressure waveforms via Fourier synthesis of the modeled 
acoustic transfer function in closely spaced frequency bands, and 
employs the array starter method to accurately model sound propagation 
from a spatially distributed source (MacGillivray and Chapman, 2012). 
Ultimately, little difference was observed between the prior sound 
fields with near-field equivalents computed using MONM versus the 
current modeling with FWRAM but FWRAM is a more accurate model as it 
allows direct calculation of peak and RMS sound pressure levels. Both 
models use a wide-angle parabolic equation solution to the acoustic 
wave equation (Collins, 1993), based on a version of the US Naval 
Research Laboratory's Range-dependent Acoustic Model (RAM), which has 
been modified to account for a solid seabed (Collins, 1993; Zhang and 
Tindle 1995).
    The practical spreading loss approach described for vibratory pile 
driving in the proposed rule has been replaced with acoustic modeling, 
similar to the refined impact pile driving methodology. A quantitative 
acoustic assessment was conducted by Avangrid of the potential impacts 
to marine mammals from vibratory pile setting followed by impact pile 
driving activity during installation. As vibratory pile driving will be 
used on the same foundations subject to impact pile driving 
(sequentially not concurrently), acoustic modeling was completed for 
vibratory setting of piles followed by impact pile driving, and 
exposures were modeled using animal movement

[[Page 52254]]

modeling as described in the impact pile driving model. One second long 
vibratory forcing functions were computed for the 12 and 13 m monopile 
and the 4-m jacket foundations, using GRL's Wave Equation Analysis 
(GRLWEAP, 2010; GRLWEAP Pile Dynamics, 2010). Non-linearities were 
introduced to the vibratory forcing functions based on the decay rate 
observed in data measured during vibratory pile driving of smaller 
diameter piles (Quijano et al., 2017). The resulting forcing functions 
serve as inputs to JASCO's pile driving source model (PDSM) used to 
estimate an equivalent acoustic source represented by a linear array of 
monopoles evenly distributed along the pile. Acoustic propagation 
modeling used FWRAM that combine the outputs of the source model with 
the spatial and temporal environmental context (e.g., location, 
oceanographic conditions, and seabed type) to estimate sound fields. 
Unchanged from the proposed rule, NMFS notes that no hammer parameters 
were available for either a 5,000 or 6,000 kJ hammer for use in GRLWEAP 
2010; Avangrid modeled energies of the 5,500 kJ hammer were scaled 
using their stroke length to represent the effect of the forcing 
functions for the two different hammers approximated.

                          Table 12--Key Piling Assumptions Used in the Source Modeling
----------------------------------------------------------------------------------------------------------------
                                            Modeled
                                        maximum  impact   Pile length   Pile wall     Expected    Max number  of
            Foundation type              hammer  energy       (m)       thickness    penetration   piles per day
                                              (kJ)                         (mm)          (m)
----------------------------------------------------------------------------------------------------------------
12-m Monopile.........................            5,000            95          200            40               2
12-m Monopile.........................            6,000            95          200            40               2
13-m Monopile.........................            5,000            95          200            40               2
4-m Pin Pile (Jacket).................            3,500           100          100            50               4
----------------------------------------------------------------------------------------------------------------

    Avangrid also updated source and propagation modeling approaches 
associated with estimating impacts from drilling. The proposed rule 
assumed an unattenuated source level of 193.3 dB re 1 [mu]Pa (as 
estimated by Austin et al. (2018) and therefore, assuming 10 dB of 
attenuation as sound attenuation measures were proposed to be required, 
applied a 183.3 dB SPL source level to the analysis. Avangrid had 
applied a practical spreading loss model (15logR) to that source level, 
resulting in a 16.6-km distance to NMFS 120 dB SPL Level B harassment 
threshold. For this final rule, Avangrid modeled drilling noise at the 
source and conducted more sophisticated propagation modeling. To model 
drilling, the three representative source levels estimated by Austin et 
al. (2018) for the 10-32,000 Hz band were averaged with an average 
broadband level of 191.6 dB re 1 [mu]Pa2[middot]s m2. These modeling 
locations were selected as they represent the range of water depths in 
the Lease Area. MONM was used to predict SEL and SPL sound fields up to 
1 kHz at a representative location near the proposed drilling sites 
considering the influence of bathymetry, seabed, water sound speed, and 
water attenuation. From 1 to 25 kHz, the BELLHOP ray tracing model 
(Porter and Liu, 1994) was used to predict sound fields at the same 
representative location using from 2512 to 5012 geometric beams, 
increasing the beam coverage with frequency. The total sound energy 
transmission loss was computed at the center frequencies of decidecade 
bands as a function of range and depth from the source. MONM-BELLHOP 
accounts for sound attenuation due to energy absorption through ion 
relaxation and viscosity of water in addition to acoustic attenuation 
due to reflection at the medium boundaries and internal layers (Fisher 
and Simmons 1977). The former type of sound attenuation is important 
for frequencies higher than 5 kHz and cannot be neglected without 
noticeably affecting the model results. The drill was represented as a 
point source in the mid-water column at each site. The mid-water depth 
is a conservative representation of the noise source across the drill 
bit. The acoustic field in three dimensions was generated by modeling 
two-dimensional (2-D) vertical planes radially spaced at 2.5[deg] in a 
360[deg] swath around the source (N x 2-D). Composite broadband 
received SEL were computed by summing the received decidecade band 
levels across frequency and taking the maximum-over-depth. Overall, the 
average source levels per decidecade band center frequency were used in 
MONM to predict SEL and SPL sound fields up to 1 kHz, and a BELLHOP ray 
tracing model (Porter and Liu 1994) was used from 1-32 kHz, at a 
representative location near the proposed drilling sites considering 
the influence of bathymetry, seabed, water sound speed, and water 
attenuation. The modeled unweighted SPL levels at 750 m were 135.25-
136.33 dB re 1 [mu]Pa during the summer. The corresponding unweighted 
cumulative SEL levels at 750 m are 185.07-185.24 dB re 1 
[mu]Pa\2\[middot]s during the summer.
    Similar to the proposed rule, modeling assumed that drilling 
activity could occur for a full 24 hours during any given day although 
it is not expected that drilling would be required up to 24 hours, More 
details on the drilling modeling methods and assumptions can be found 
in more detail in the January 2024 Drilling Technical Memo on our 
website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind).
    JASCO conducted exposure modeling for impact driving in the same 
manner as described in the proposed rule for impact driving. For this 
final rule, exposure modeling was also conducted for vibratory pile 
driving (versus the static method applied in the proposed rule). 
JASCO's Animal Simulation Model Including Noise Exposure (JASMINE) was 
used to estimate the closest approach ranges within which 95 percent of 
simulated animals (animats) were exposed above the relevant regulatory-
defined thresholds for injury and behavioral response for marine 
species that may be near, or in the vicinity of, the proposed 
foundation piling operations (impact and vibratory). Therefore, JASMINE 
was used to estimate the probability of exposure of animals to sound 
arising from impact and vibratory pile driving operations during 
construction of the Project. Sound exposure models such as JASMINE use 
simulated animals (animats) to sample the predicted 3-D sound fields 
with movement rules derived from animal observations. The parameters 
used for forecasting realistic behaviors (e.g., diving, foraging, 
aversion, and surface times) are determined and interpreted from marine 
species studies (e.g., tagging studies) where available, or reasonably

[[Page 52255]]

extrapolated from related species (appendix G.2, Hydroacoustic Report 
January 2024).
    The predicted sound fields were sampled by the model receiver in a 
way that real animals are expected to by programming animats to behave 
like marine species that may be present near the Project. The output of 
the simulation is the exposure history for each animat within the 
simulation. An individual animat's sound exposure level is summed over 
a specified duration, (i.e., 24 hours (appendix H Hydroacoustic Report 
January 2024)), to determine its total received acoustic energy (SEL) 
and maximum received PK and SPL. Received levels are then compared to 
the threshold criteria described in Section 2.4 (Hydroacoustic Report 
January 2024) within each analysis period. Appendix H of the 
Hydroacoustic Report January 2024 provides a fuller description of 
animal movement modeling and the parameters used in the JASMINE 
simulations. Due to shifts in animal density and seasonal sound 
propagation effects, the number of animals predicted to be impacted by 
the pile driving operations is sensitive to the number of foundations 
installed during each month.
    The animal movement modeling assumed 60 minutes of vibratory 
setting of piles for all pile types and installation schedules. For 
piling of monopile foundations, the model assumed 15 minutes between 
vibratory and impact pile driving to switch equipment. A strike rate of 
30 strikes per minute for the 5,000 kJ hammer scenarios, 27.6 strikes 
per minute for the 6,000 kJ hammer 13 m monopile scenarios, and 25 
strikes per minute for the 6,000 kJ hammer 12 m monopile scenarios was 
used. The model assumed 30 minutes between foundation installation when 
more than one foundation was installed per day.
    For jacket foundations, the number of strikes required to drive 
each pile as provided by Avangrid is a conservative estimate, in that 
it is likely to be an overestimate of the actual number of strikes 
required. The animal movement modeling is based on exposure levels in a 
24 hour period to capture 24-hour cumulative metrics (i.e., SEL), so 
pile installation is constrained to fit within 24 hours. To accommodate 
the high number of strikes for jacket foundations within a 24-hour 
period, a strike rate of 30 per minute was used to model cases where 4 
pin piles were installed in one day. Additionally, the time between 
pile installation each day was 15 minutes between vibratory and impact 
pile driving to switch equipment and 15 minutes between foundation 
installations.
    When evaluating the potential for injury, the total received 
acoustic energy (SEL) over a given time period (24 hour) is needed. 
Vibratory setting of piles followed by impact pile driving may occur 
for the installation of both monopile and jacket foundations. Although 
the potential to induce hearing loss is low during vibratory driving, 
it does introduce sound into the water and must be considered as part 
of the total received acoustic energy. For this reason, the combined 
sound energy from vibratory and impact pile driving was computed in the 
2024 January Application Update from Avangrid. The PTS onset SEL 
thresholds are lower for impact piling than for vibratory piling 
(section 2.4 Hydroacoustic Report January 2024), so when estimating 
animats exposed to potentially injurious sound levels, the lower 
thresholds were applied to the total received sound energy level from 
both sources. Full details on the acoustic model can be found on our 
website in the Hydroacoustic Report January 2024 at https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind.
    As previously described, JASCO integrated the results from acoustic 
source and propagation modeling into an animal movement model to 
calculate exposure ranges for 17 marine mammal species considered 
common in the project area. The resulting ranges represent the 
distances at which marine mammals may incur Level A harassment (i.e., 
PTS). The exposure ranges also influence the development of mitigation 
and harassment zone sizes. The first year of Schedule A includes the 
potential installation of 13-m monopiles using a 6,000 kJ hammer. In 
the proposed rule and unchanged in this final rule, this specific 
configuration was not modeled beyond acoustic source modeling because 
initial source modeling showed minimal difference between the 12-m and 
13-m monopiles (see table 12 in the proposed rule (88 FR 37606, June 8, 
2023)). Therefore, Avangrid modeled the 12-m monopile with 6,000 kJ 
hammer energy which was assumed to be a reasonable replacement for the 
13-m. Avangrid assumed that all phase 2 foundations are jackets as 
their modeling results found that jacket foundations are the most 
impactful in terms of the Level A cumulative sound exposure metric. 
Thus, the assumption of all jacket foundations provide an envelope for 
an up to 13-m monopile installed with a 5,000 or 6,000 kJ hammer. 
Tables 13 and 14 provide exposure ranges for impact pile driving 12-m 
and 13-m monopiles and 4-m pin piles (jacket foundations), assuming 10 
dB of attenuation. Table 15 provides Level A harassment exposure ranges 
for vibratory pile driving followed by impact pile driving of 12-m and 
13-m monopiles, assuming 10 dB of attenuation. Table 16 provides Level 
B harassment exposure ranges for vibratory pile driving followed by 
impact pile driving of 12-m and 13-m monopiles, assuming 10 dB of 
attenuation. Table 17 provides exposure ranges for vibratory pile 
driving followed by impact pile driving of 4-m pin piles (jacket 
foundations), assuming 10 dB of attenuation.
    Animat exposure modeling was not conducted for drilling. Instead, 
exposures were calculated for one day of drilling, modeled at three 
site locations. Exposures were calculated for each of these locations 
individually and for the maximum potential exposures using the maximum 
ensonified area for each threshold. Exposures were estimated using the 
monthly animal densities from May to December.

[[Page 52256]]



Table 13--Exposure Ranges (ER95%, km) to Marine Mammal Level A Harassment (SEL) and Level B Harassment Thresholds During Impact Pile Driving 12-m and 13-m Monopiles, Assuming 10 dB Attenuation
                                                                                               \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Level A harassment                                              Level B harassment
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                           12-m Monopile                   13-m Monopile                   12-m Monopile                   13-m Monopile
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                     5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ
                      Marine mammal species                        hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                    one     two     one     two     one     two     one     two     one     two     one     two     one     two     one     two
                                                                   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/
                                                                    day     day     day     day     day     day     day     day     day     day     day     day     day     day     day     day
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................................    1.19    1.41    1.19    1.34    1.19    1.37    1.56    1.62    4.50    4.39    4.91    4.83    4.73    4.51    5.28    5.18
Fin whale.......................................................    2.00    2.13    2.05    2.16    2.04    2.30    2.14    2.58    4.88    4.92    5.28    5.29    5.08    4.99    5.56    5.40
Humpback whale..................................................    1.71    1.78    1.72    1.97    1.87    1.99    1.96    1.99    4.86    4.65    5.26    5.12    5.02    4.93    5.27    5.40
Minke whale.....................................................    0.82    0.96    0.91    1.12    0.96    1.02    1.22    1.19    4.61    4.32    4.95    4.87    4.44    4.67    5.05    5.05
Sei whale.......................................................    0.94    1.14    1.36    1.27    1.17    1.30    1.32    1.31    4.72    4.60    5.19    5.17    4.96    4.90    5.44    5.34
Sperm whale.....................................................       0       0       0       0       0       0       0       0    4.68    4.51    5.22    5.16    4.80    4.84    5.33    5.27
Atlantic spotted dolphin........................................       0       0       0       0       0       0       0       0    4.48    4.18    5.02    4.51    4.74    4.58    4.88    4.84
Atlantic white-sided dolphin....................................       0       0       0       0       0       0       0       0    4.26    4.31    4.87    4.83    4.50    4.47    5.01    4.98
Bottlenose dolphin, offshore....................................       0       0       0       0       0       0       0       0    3.98    3.79    4.45    4.18    4.09    4.12    4.70    4.65
Common dolphin..................................................       0       0       0       0       0       0       0       0    4.47    4.34    4.99    4.88    4.63    4.55    5.28    5.10
Long-finned pilot whale.........................................       0       0       0       0       0       0       0       0    4.20    4.09    4.75    4.72    4.39    4.38    4.95    4.76
Short-finned pilot whale........................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Risso's dolphin.................................................       0       0       0       0       0       0       0       0    4.30    4.20    4.72    4.74    4.55    4.50    4.93    5.05
Harbor porpoise.................................................       0       0       0       0       0       0       0       0    4.23    3.94    4.46    4.44    4.49    4.41    4.74    4.75
Gray seal.......................................................       0       0       0       0       0       0       0       0    5.10    5.13    5.58    5.53    5.42    5.34    5.85    5.77
Harbor seal.....................................................       0       0       0       0       0       0       0       0    3.80    4.06    4.45    4.41    4.33    4.18    4.43    4.56
Harp seal.......................................................       0       0       0       0       0       0       0       0    4.86    4.84    5.26    5.31    5.02    4.96    5.50    5.45
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The exposure ranges presented here represent the assumption that the pile would be fully installed with an impact hammer.


     Table 14--Exposure Ranges (ER95%, km) to Marine Mammal Level A
  Harassment (SEL) and Level B Harassment Thresholds During Impact Pile
 Driving Four 4-m Pin Piles per Day Using a 3,500 kJ Hammer, Assuming 10
                           dB Attenuation \1\
------------------------------------------------------------------------
    Marine mammal species      Level A harassment    Level B harassment
------------------------------------------------------------------------
North Atlantic right whale..                  2.35                  4.54
Fin whale...................                  3.73                  4.66
Humpback whale..............                  2.94                  4.65
Minke whale.................                  1.76                  4.24
Sei whale...................                  2.10                  4.52
Sperm whale.................                     0                  4.52
Atlantic spotted dolphin....                     0                  4.47
Atlantic white-sided dolphin                     0                  4.40
Bottlenose dolphin, offshore                     0                  4.02
Common dolphin..............                     0                  4.48
Long-finned pilot whale.....                     0                  4.11
Short-finned pilot whale....                     0                     0
Risso's dolphin.............                     0                  4.31
Harbor porpoise.............                     0                  4.20
Gray seal...................                  0.79                  4.97
Harbor seal.................                  0.02                  4.09
Harp seal...................                  0.11                  4.65
------------------------------------------------------------------------
\1\ The exposure ranges presented here represent the assumption that the
  pile would be fully installed with an impact hammer.


 Table 15--Exposure Ranges (ER95%, km) to Marine Mammal Level A Harassment (SEL) Thresholds During Vibratory Pile Setting Followed by Impact Pile Driving for 12-m and 13-m Monopiles, Assuming
                                                                                      10 dB Attenuation \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Vibratory + impact pile driving                                       Vibratory only \2\
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                           12-m Monopile                   13-m Monopile                   12-m Monopile                   13-m Monopile
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                     5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ
                      Marine mammal species                        hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                    one     two     one     two     one     two     one     two     one     two     one     two     one     two     one     two
                                                                   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/
                                                                    day     day     day     day     day     day     day     day     day     day     day     day     day     day     day     day
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................................    1.15       0    1.39    1.44    1.29    1.40    1.54    1.59       0       0       0       0       0       0       0       0
Fin whale.......................................................    2.02    0.02    2.14    2.24    2.10    2.61    2.16    2.69    0.02       0    0.02       0       0       0       0       0
Humpback whale..................................................    1.72       0    1.88    1.98    1.90    2.05    1.94    2.07       0       0       0       0       0       0       0       0
Minke whale.....................................................    0.81       0    1.02    1.21    0.95    0.99    1.20    1.18       0       0       0       0       0       0       0       0
Sei whale.......................................................    1.15       0    1.64    1.26    1.23    1.30    1.27    1.33       0       0       0       0       0       0       0       0

[[Page 52257]]

 
Sperm whale.....................................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Atlantic spotted dolphin........................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Atlantic white-sided dolphin....................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Bottlenose dolphin, offshore....................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Common dolphin..................................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Risso's dolphin.................................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Long-finned pilot whale.........................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Short-finned pilot whale........................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Harbor porpoise.................................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Gray seal.......................................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Harbor seal.....................................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Harp seal.......................................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The exposure ranges presented here represent the assumption that the pile would be partially installed using vibratory pile driving before the remainder is installed with an impact hammer.
\2\ Vibratory only is included to show that the distance to injury is small, however, no pile will be installed using only vibratory pile driving. Due to Avangrid's updated model approach, the
  combination of vibratory and impact pile driving within the model obscures the true distance to Level A harassment during vibratory pile driving when combined with impact. Therefore, the
  Level A harassment column of vibratory + impact pile driving is primarily a result of impact pile driving in the new model approach.


  Table 16--Exposure Ranges (ER95%, km) to Marine Mammal Level B Harassment Thresholds During Vibratory Pile Setting Followed by Impact Pile Driving for 12 and 13-m Monopiles, Assuming 10-dB
                                                                                         Attenuation \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Impact pile driving                                             Vibratory only \2\
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                           12-m Monopile                   13-m Monopile                   12-m Monopile                   13-m Monopile
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                     5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ        5,000 kJ        6,000 kJ
                      Marine mammal species                        hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)    hammer  (km)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                    one     two     one     two     one     two     one     two     one     two     one     two     one     two     one     two
                                                                   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/   pile/  piles/
                                                                    day     day     day     day     day     day     day     day     day     day     day     day     day     day     day     day
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................................    4.49    4.38    4.91    4.83    4.58    4.52    5.08    5.11   20.96   21.10   20.96   21.10   28.07   27.45   28.07   27.45
Fin whale.......................................................    4.97    4.89    5.30    5.31    5.12    4.97    5.59    5.49   22.22   22.14   22.22   22.14   29.40   29.41   29.40   29.41
Humpback whale..................................................    4.83    4.73    5.35    5.18    5.09    4.95    5.42    5.43   22.26   22.28   22.26   22.28   29.27   29.03   29.27   29.03
Minke whale.....................................................    4.49    4.43    5.01    4.92    4.62    4.75    5.19    5.21   22.06   21.93   22.06   21.93   28.66   28.38   28.66   28.38
Sei whale.......................................................    4.60    4.63    5.21    5.24    4.85    5.02    5.38    5.43   22.30   22.08   22.30   22.08   29.29   29.02   29.29   29.02
Sperm whale.....................................................    4.68    4.59    5.17    5.11    4.87    4.86    5.40    5.28   21.97   21.95   21.97   21.95   29.15   28.87   29.15   28.87
Atlantic spotted dolphin........................................    4.80    4.22    5.17    4.71    4.66    4.68    5.05    4.90   23.35   23.10   23.35   23.10   29.75   30.12   29.75   30.12
Atlantic white-sided dolphin....................................    4.32    4.40    5.08    4.97    4.50    4.57    5.04    5.03   22.07   21.72   22.07   21.72   28.30   28.64   28.30   28.64
Bottlenose dolphin, offshore....................................    4.03    3.71    4.29    4.41    4.15    4.12    4.61    4.76   21.21   20.81   21.21   20.81   27.88   27.42   27.88   27.42
Common dolphin..................................................    4.44    4.34    5.02    4.90    4.61    4.64    5.28    5.19   21.97   21.89   21.97   21.89   29.10   28.53   29.10   28.53
Long-finned pilot whale.........................................    4.21    4.20    4.86    4.76    4.50    4.48    4.84    4.83   21.72   21.59   21.72   21.59   27.77   27.45   27.77   27.45
Short-finned pilot whale........................................       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0       0
Risso's dolphin.................................................    4.42    4.27    4.78    4.71    4.60    4.59    4.99    5.08   21.05   20.79   21.05   20.79   27.16   27.41   27.16   27.41
Harbor porpoise.................................................    4.29    3.99    4.56    4.38    4.41    4.37    4.82    4.84   19.32   19.03   19.32   19.03   23.33   23.20   23.33   23.20
Gray seal.......................................................    5.16    5.13    5.67    5.53    5.42    5.34    5.83    5.78   22.32   22.29   22.32   22.29   29.51   29.53   29.51   29.53
Harbor seal.....................................................    3.81    4.03    4.35    4.42    4.33    4.15    4.56    4.69   19.80   19.89   19.80   19.89   24.96   24.58   24.96   24.58
Harp seal.......................................................    5.03    4.90    5.25    5.24    5.11    4.98    5.49    5.48   22.45   22.43   22.45   22.43   29.45   29.44   29.45   29.44
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The exposure ranges presented here represent the assumption that the pile would be partially installed using vibratory pile driving before the remainder is installed with an impact hammer.
\2\ No pile will be installed using only vibratory pile driving. Due to Avangrid's updated model approach, the combination of vibratory and impact pile driving within the model results in
  similar values for impact pile driving during vibratory as compared to impact only piles.


     Table 17--Exposure Ranges (ER95%, km) to Marine Mammal Level A Harassment (SEL) and Level B Harassment
 Thresholds During Vibratory Pile Setting Followed by Impact Pile Driving for Four 4-m Pin Piles per Day Using a
                                 3,500 kJ Hammer, Assuming 10 dB Attenuation \1\
----------------------------------------------------------------------------------------------------------------
                                                         Level A harassment                Level B harassment
            Marine mammal species             ------------------------------------------------------------------
                                                Vibratory + impact    Vibratory only    Impact   Vibratory only
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................                  2.44                 0     4.47             25.66

[[Page 52258]]

 
Fin whale....................................                  4.02              0.04     4.63             27.74
Humpback whale...............................                  3.32                 0     4.70             27.43
Minke whale..................................                  1.94                 0     4.22             26.94
Sei whale....................................                  2.16                 0     4.56             28.05
Sperm whale..................................                     0                 0     4.54             27.11
Atlantic spotted dolphin.....................                     0                 0     4.50             29.06
Atlantic white-sided dolphin.................                     0                 0     4.41             27.16
Bottlenose dolphin, offshore.................                     0                 0     4.09             25.85
Common dolphin...............................                     0                 0     4.46             27.04
Long-finned pilot whale......................                     0                 0     4.18             26.89
Short-finned pilot whale.....................                     0                 0        0                 0
Risso's dolphin..............................                     0                 0     4.30             26.51
Harbor porpoise..............................                     0                 0     4.21             23.26
Gray seal....................................                  0.79                 0     4.98             27.41
Harbor seal..................................                  0.07                 0     4.11             23.55
Harp seal....................................                  0.12                 0     4.64             27.65
----------------------------------------------------------------------------------------------------------------
\1\ The exposure ranges presented here represent the assumption that the pile would be partially installed using
  vibratory pile driving before the remainder is installed with an impact hammer.

    JASCO also calculated acoustic ranges which represent distances to 
NMFS's harassment isopleths independent of movement of a receiver. 
Acoustic ranges are a better representation of distances to NMFS's 
instantaneous harassment thresholds (i.e., PTS dB peak, and Level B 
harassment) and can also be used for PTS dB SEL when animal movement 
modeling is not conducted. As described previously, the distances to 
the PTS dB SEL threshold are likely an overestimate as it assumes an 
animal remains at the distance for the entire duration of pile driving. 
Presented below are the distances to the PTS (dB peak) threshold and 
Level B harassment (SPL) thresholds for drilling.
    Acoustic modeling assumed that drilling activity could occur for a 
full 24 hours during any given day. Although drilling is not expected 
to be required for 24 hours, all modeling assumed 24 hours of drilling 
to provide the most conservative estimate. Exposures were calculated 
for one day of drilling. Drilling was modeled at each of the three 
model site locations (J1, M1, M2). Exposures were calculated for each 
of these locations individually and also for the maximum potential 
exposures using the maximum ensonified area for each threshold. 
Exposures were estimated using the monthly animal densities from May to 
December. Maximum predicted injury exposures were <0.01 for modeled 
marine mammals (see appendix K of the Hydroacoustic Report January 
2024), where ranges to injurious thresholds are <200 m for all species.
    Acoustic ranges to the Level A harassment threshold and Level B 
harassment thresholds are in tables 18 and 19, respectively. Mean 
monthly density estimates for pile driving and drilling, in 
consideration of the applicable perimeter for each type, are provided 
in tables 7, 8, and 9.

                             Table 18--Acoustic Ranges (R95%), in km, to Level A Harassment Thresholds During Pile Driving and Drilling, Assuming 10 dB Attenuation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Low-frequency     Mid-frequency    High-frequency        Phocids
                                                                             Hammer                                           cetacean          cetacean          cetaceans    -----------------
            Pile installed                        Install method             energy      Activity duration  (minutes)    ------------------------------------------------------
                                                                              (kJ)                                          Lpk      SEL      Lpk      SEL      Lpk      SEL      Lpk      SEL
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Drilling..............................  Drilling..........................       N/A  1,440 (24 hours)..................  .......    0.065  .......   0.0154  .......     .057  .......   0.1059
12-m..................................  Impact............................     5,000  N/A...............................  .......      3.5  .......  .......     0.20  .......  .......     0.40
12-m..................................  Impact............................     6,000  N/A...............................  .......    3.546  .......  .......     0.24     0.02  .......     0.40
13-m..................................  Impact............................     5,000  N/A...............................  .......      4.0  .......  .......     0.25     0.09  .......     0.44
13-m..................................  Impact............................     6,000  N/A...............................  .......    4.041  .......  .......     0.28    0.108  .......    0.451
4-m...................................  Impact............................     3,500  N/A...............................  .......    6.822  .......  .......     0.17    0.428  .......    1.605
12-m..................................  Impact + Vibratory................     5,000  N/A...............................  .......     3.67  .......  .......  .......  .......  .......     0.42
12-m..................................  Impact + Vibratory................     6,000  N/A...............................  .......     4.08  .......  .......  .......      0.4  .......     0.49
13-m..................................  Impact + Vibratory................     5,000  N/A...............................  .......     4.12  .......  .......  .......     0.09  .......     0.45
13-m..................................  Impact + Vibratory................     6,000  N/A...............................  .......     4.58  .......  .......  .......     0.11  .......     0.53
4-m...................................  Impact + Vibratory................     3,500  N/A...............................  .......     7.41  .......  .......  .......     0.44  .......     1.74
12-m..................................  Vibratory.........................       N/A  60................................  .......     0.20  .......  .......  .......  .......  .......  .......
13-m..................................  Vibratory.........................       N/A  60................................  .......     0.15  .......  .......  .......  .......  .......  .......
4-m...................................  Vibratory.........................       N/A  60................................  .......     1.13  .......  .......  .......  .......  .......  .......
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Values are from the Hydroacoustic Report January 2024.


[[Page 52259]]


   Table 19--Acoustic Ranges (R95%), in Meters, to Level B Harassment
 Thresholds During Pile Driving and Drilling, Assuming 10 dB Attenuation
------------------------------------------------------------------------
                                                    Distance to  Level B
         Pile installed            Install method     harassment  (km)
------------------------------------------------------------------------
Drilling.......................  Drilling.........                 7.054
12-m (5,000 kJ)................  Impact...........                  5.07
12-m (6,000 kJ)................  Impact...........                 5.456
13-m (5,000 kJ)................  Impact...........                  5.39
13-m (6,000 kJ)................  Impact...........                 5.716
4-m (3,500 kJ).................  Impact...........                 5.016
12-m...........................  Vibratory........                22.521
13-m...........................  Vibratory........                28.900
4-m............................  Vibratory........                27.896
------------------------------------------------------------------------

    Unchanged from the proposed rule, to estimate take from foundation 
installation activities, Avangrid used two pile installation 
construction schedules (tables 20 and 21). Overall, Construction 
Schedule A (Schedule A) assumes 52 days of foundation installation 
activities would occur between May and December in 2026 (year 2) to 
install 89 monopiles and 2 jacket foundations and 35 days of foundation 
installation activities would occur in 2027 (year 3) to install 18 
monopiles and 24 jacket foundations. As previously described, Park City 
accounted for 133 piles to be installed in its modeling despite a 
maximum of 132 foundations actually being installed. In total, based on 
Schedule A, 87 days of foundation installation activities would occur 
over 2 years to complete the Project. Construction Schedule B (Schedule 
B) assumes 38 days of foundation installation activities would occur 
between May and December in 2026 (year 2) to install 55 monopiles and 3 
jacket foundations, 53 days of foundation installation activities would 
occur in 2027 (year 3) to install 53 jackets, and 22 days of foundation 
installation activities would occur in 2028 (year 4) to install 22 
jackets. In total, based on Schedule B, 113 days of foundation 
installation activities would occur over 3 years to complete the 
Project.
    Due to the extended duration of Schedule B, the total amount of 
Level B harassment from foundation installation activities is greater 
than Schedule A over the 5-year effective period of the final rule. The 
total 5-year take by Level B harassment in this final rule is therefore 
generated based on Schedule B. However, annual take estimates assume 
the yearly worst case scenario exposures for each species for each year 
from either Construction Schedule A or B. That is, annual take by Level 
B harassment due to foundation installation activities may use either 
Schedule A or B, whichever was more. As previously described, Park City 
accounted for 133 piles to be installed in its modeling despite a 
maximum of 132 foundations actually being installed to complete the 
Project.
    Avangrid considered three foundation installation techniques when 
estimating take: impact pile driving, vibratory pile driving followed 
by impact pile driving, and drilling (to break up any obstacles should 
the pile encounter obstructions). Of these, Level A harassment (PTS) 
has the potential to occur from impact pile driving only. As shown in 
table 18, vibratory pile driving and drilling produce very small Level 
A harassment zone sizes that consider static receivers over the 
duration of the time period considered in the model. For vibratory pile 
driving, the duration considered was relatively short (60 minutes); 
however, this represents vibratory pile driving over two piles in which 
there are several hours in between events and the resulting distances 
are comparatively small (table 18). Moreover, the implementation of 
clearance and shut down zones would further reduce the potential for 
PTS from these activities. Therefore, Avangrid has concluded, and NMFS 
agrees, the potential for PTS to occur from vibratory pile driving or 
drilling is discountable. For this reason, Avangrid carried forward the 
PTS exposure estimates from impact pile driving and no take by Level A 
harassment was considered for vibratory pile driving or drilling. The 
maximum take by Level A harassment that may be authorized under this 
final rule from the foundation activities (i.e., impact pile driving) 
is in table 24.
    To estimate the amount of Level B (behavioral) harassment that may 
occur incidental to foundation installation, Avangrid considered all 
three installation methods. As described above, Avangrid conducted 
exposure modeling to estimate the number of exposures that may occur 
from pile driving. The results of the exposure modeling and amount of 
take Avangrid requested from this activity is provided in the January 
2024 Application Update. Avangrid calculated take considering drilling 
for 48 foundations over 48 days for both Schedule A and Schedule B. In 
the proposed rule and unchanged in the final rule, Avangrid applied a 
more traditional approach to estimate take from drilling wherein:

Take = density x area ensonified x number of days of activity

    The resulting monthly and annual take can be found in the January 
2024 Application Update.
    To avoid overestimating take, the amount of take derived when 
considering impact driving, vibratory driving, and drilling 
independently were not summed to produce the amount of annual take 
Avangrid requested. Instead, Avangrid appropriately deducted the take 
from drilling when vibratory pile driving and drilling would occur on 
the same day. This is because the area for vibratory pile driving is 
much larger than drilling (table 19) and the amount of take by Level B 
harassment estimated for vibratory pile driving adequately covers 
potential take from drilling activities. However, because take from 
pile driving was modeled based on the number of piles while drilling 
takes were based on the number of days of activity, Avangrid added the 
take estimates from pile driving all piles to the take estimates from 
vibratory drilling (with the appropriate discounting) to produce their 
annual and total take requests.
    The amount of Level B harassment take that may be authorized by 
this final rule represents the amount of take from impact pile driving 
on days when only impact pile driving could occur plus the amount of 
take from vibratory pile driving or drilling on the days that either of 
those activities could occur to avoid double counting.

[[Page 52260]]

    Table 24 provides the annual take by Level B harassment calculated 
from pile driving for both Schedule A and, separately, Schedule B. For 
ease of reference, the construction schedules have been included below 
in tables 20-21. Table 25 identifies the amount of take for drilling 
foundation installation activities after removing drilling takes when 
drilling would occur on the same day as vibratory pile driving (to 
avoid double counting). The annual take amounts represent the highest 
value between both Schedule A and Schedule B while the maximum 5-year 
take estimates represent the sum of take calculated for each year in 
Schedule B (as Schedule B has the highest amount of take associated). 
NMFS retained Avangrid's request for Level A harassment from all impact 
pile driving activities as no Level A harassment from vibratory pile 
driving or drilling is anticipated (table 24). Table 26 identifies the 
amount of take for all foundation installation activities combined that 
was carried forward in the take tables for this final rule.

[[Page 52261]]



                                                                                    Table 20--Pile Installation Construction Schedule A Year 2 and 3
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Year 2 (2026) \a\                                                                          Year 3 (2027)
                                                       ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           12 m Monopile       13 m Monopile     4 m  Pin                                                      12 m Monopile     4 m Pin
                                                             5,000 kJ            5,000 kJ          pile      Total    Total days              Year 2 total       6,000 kJ         pile      Total   Total days              Year 3 total
                         Month                         ----------------------------------------  3,500 kJ   days of      with      Days with     days of   -------------------- 3,500 kJ   days of     with      Days with     days of
                                                                                               -----------   impact    vibratory   drilling    foundation                      ----------  impact    vibratory   drilling    foundation
                                                          1 per     2 per     1 per     2 per                 only     + impact       \c\     installation    1 per     2 per     1 per     only     + impact       \c\     installation
                                                           day       day       day       day    4 per day    piling   piling \b\                   \c\         day       day       day     piling   piling \b\                   \c\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May...................................................         4         0         0         0          0          4           0           2             4         4         0         0         4           0           1             4
June..................................................         2         5         0         0          0          5           2           4             7         0         3         0         1           2           2             3
July..................................................         0         9         0         0          0          5           4           7             9         0         4         0         0           4           2             4
August................................................         0         9         0         0          0          3           6           7             9         0         0         8         0           8           4             8
September.............................................         0         1         1         6          2          6           4           8            10         0         0         7         1           6           2             7
October...............................................         0         0         0         6          0          3           3           3             6         0         0         6         2           4           2             6
November..............................................         0         0         0         3          0          2           1           2             3         0         0         2         1           1           2             2
December..............................................         0         0         4         0          0          4           0           0             4         0         0         1         1           0           0             1
                                                       ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total.............................................         6        24         5        15          2         32          20          33            52         4         7        24        10          25          15            35
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Annual Days.................................                                                52 days
                                                                                         35 days
                                                       ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Annual Foundations..........................                                      89 monopiles and 2 jackets
                                                                               18 monopiles and 24 jackets
                                                       ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Annual Piles................................                                     89 monopiles and 8 pin piles
                                                                              18 monopiles and 96 pin piles
                                                       ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Schedule Days...............................                                                                                         87
                                                       ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Schedule Foundations........................                                                                                         113
                                                       ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Schedule Piles..............................                                                                                         211
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The request is for the 5-year period 2025-2029, during which pile installation is scheduled to begin in 2026. These dates reflect the currently projected construction start year and are subject to change because exact project
  start dates and construction schedules are not currently available. No concurrent/simultaneous pile driving of foundations is planned.
\b\ The number of days with vibratory hammering or drilling is based on a percentage of the number of days of pile installation and includes installation of a mix of monopiles at a rate of both one per day and two per day as well as
  installation of jacket foundations at a rate of four pin piles per day. The number of takes by Level B harassment per day is unaffected by the number of piles or foundations installed on that day because the SPL 120 dB metric is
  not cumulative. Level B take was estimated using density-based calculations that assume all animals within the area ensonified to 120 dB are taken as soon as the activity begins and cannot be taken additional times within one day.
  Only Level B takes are being requested for drilling and vibratory hammering.
\c\ Avangrid assumed that vibratory hammering and drilling would not occur on the same day, when possible. However, for months when the number of days with vibratory hammering plus the number of days with drilling exceeded the total
  number of impact piling days that month, and assumed the minimum number of days of overlap possible for these two activities. On the days with overlap between drilling and vibratory hammering, the estimated Level B takes resulting
  from drilling were not included to avoid double counting taken animals, because all animals within the larger vibratory hammering zone of influence were assumed to have already been taken by that activity. Level B takes for 8 days
  of drilling in year 2 (2026) and 9 days of drilling in year 3 (2027) shown in Schedule A were thus not included in the total take estimates.


                                                                                  Table 21--Pile Installation Construction Schedule B Year 2, 3, and 4
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Year 2 (2026) \a\                                                Year 3 (2027)                                          Year 4 (2028)
                                                  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     12 m Monopile     4 m                                                    4 m                                                4 m  Pin
                                                       5,000 kJ        Pin                Total                               Pin               Total                              pile
                                                  ------------------   pile     Total   days with             Year 2 total    pile    Total   days with    Days    Year 3 total  3,500 kJ    Total   Total days             Year 4 total
                      Month                                           3,500    days of  vibratory  Days with     days of     3,500   days of  vibratory    with       days of   ----------  days of     with     Days with     days of
                                                                        kJ     impact    + impact   drilling   foundation      kJ     impact   + impact  drilling   foundation              impact    vibratory   drilling   foundation
                                                    1 per    2 per  ---------   only      piling      \c\     installation ---------   only     piling      \c\    installation    4 per     only     + impact      \c\     installation
                                                     day      day     4 per    piling      \b\                     \c\       4 per    piling     \b\                    \c\         day     piling   piling \b\                  \c\
                                                                       day                                                    day
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May..............................................        4        0        0         4          0          2            4         1        1          0         1            1          1         1           0          1            1
June.............................................        6        4        0         8          2          4           10         9        7          2         4            9          4         2           2          2            4
July.............................................        0        7        0         3          4          3            7        14        9          5         4           14          5         3           2          2            5

[[Page 52262]]

 
August...........................................        1        5        1         1          6          4            7        14        6          8         4           14          5         3           2          1            5
September........................................        0        3        1         0          4          4            4         8        3          5         4            8          5         4           1          1            5
October..........................................        1        1        1         0          3          2            3         4        0          4         1            4          1         0           1          1            1
November.........................................        2        0        0         1          1          1            2         2        1          1         1            2          1         0           1          1            1
December.........................................        1        0        0         1          0          0            1         1        1          0         0            1          0         0           0          0            0
                                                  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total........................................       15       20        3        18         20         20           38        53       28         25        19           53         22        13           9          9           22
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Annual Days............................                                  38 days
                                                                       53 days
                                                                       22 days
                                                  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Annual Foundations.....................                         55 monopiles and 3 jackets
                                                                     53 jackets
                                                                     22 jackets
                                                  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Annual Piles...........................                       55 monopiles and 12 pin piles
                                                                    212 pin piles
                                                                    88 pin piles
                                                  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Schedule Days..........................                                                                                           113
                                                  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Schedule Foundations...................                                                                                           133
                                                  --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Schedule Piles.........................                                                                                           367
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ This LOA request is for the 5-year period 2025-2029, during which pile installation is scheduled to begin in 2026. These dates reflect the currently projected construction start year and are subject to change because exact
  project start dates and construction schedules are not currently available. No concurrent/simultaneous pile driving of foundations is planned.
\b\ The number of days with vibratory hammering or drilling is based on a percentage of the number of days of pile installation and includes installation of a mix of monopiles at a rate of both one per day and two per day as well as
  installation of jacket foundations at a rate of four pin piles per day. The number of takes by Level B harassment per day is unaffected by the number of piles or foundations installed on that day because the SPL 120 dB metric is
  not cumulative. Level B take was estimated using density-based calculations that assume all animals within the area ensonified to 120 dB are taken as soon as the activity begins and cannot be taken additional times within one day.
  Only Level B takes are being requested for drilling and vibratory hammering.
\c\ As a conservative measure, it was assumed that vibratory hammering and drilling would not occur on the same day, when possible. However, for months when the number of days with vibratory hammering plus the number of days with
  drilling exceeded the total number of impact piling days that month, and assumed the minimum number of days of overlap possible for these two activities. On the days with overlap between drilling and vibratory hammering, the
  estimated Level B takes resulting from drilling were not included to avoid double counting taken animals, because all animals within the larger vibratory hammering zone of influence were assumed to have already been taken by that
  activity. Level B takes for 9 days of drilling in year 2 (2026), 2 days of drilling in year 3 (2027), and 2 days of drilling in year 4 (2028) shown in Schedule B were thus not included in the total take estimates.


[[Page 52263]]


    Table 22--Marine Mammal Exposure Estimates for Construction Schedule A and Schedule B for Impact and Vibratory Pile Driving, Assuming 10 dB Noise
                                                                      Attenuation a
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Schedule A                                                  Schedule B
                                 -----------------------------------------------------------------------------------------------------------------------
             Species                Level A harassment      Level B harassment            Level A harassment                  Level B harassment
                                 -----------------------------------------------------------------------------------------------------------------------
                                    Year 2      Year 3      Year 2      Year 3      Year 2      Year 3      Year 4      Year 2      Year 3      Year 4
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \c\..        0.98        1.71       19.36       30.72        0.75        2.88        1.32       13.21       40.53       18.14
Fin whale \b\...................        5.57        7.75      108.46      152.41        4.24       19.32        7.79       91.43      188.88       67.19
Humpback whale..................        5.58        8.04       75.24       98.79        3.99       16.51        7.10       62.63      127.85       55.43
Minke whale (migrating) \b\.....       16.88       29.55      284.57      353.33       15.02       85.85       37.91      259.13      517.67      230.59
Sei whale (migrating) \b\.......        0.54        1.25       12.02       18.61        0.41        2.36        1.14        8.99       26.18       13.57
Sperm whale \c\.................           0           0       28.33       47.71           0           0           0       23.63       54.21       17.44
Atlantic spotted dolphin........           0           0       81.79      135.51           0           0           0       45.03      137.43       42.41
Atlantic white sided dolphin....           0           0      951.70     1287.99           0           0           0      754.22     1838.83      832.54
Bottlenose dolphin, offshore....           0           0      897.08     1663.50           0           0           0      656.25     2164.30      799.98
Common dolphin..................           0           0    13739.47    23178.10           0           0           0     9842.10    28373.15    10590.19
Long-finned pilot whale.........           0           0      105.51      164.14           0           0           0       79.13      210.13       78.75
Short-finned pilot whale........           0           0           0           0           0           0           0           0           0           0
Risso's dolphin.................           0           0      168.60      400.34           0           0           0       94.69      458.24      143.19
Harbor porpoise (sensitive) \b\.           0           0      485.64      717.07           0           0           0      391.52      863.37      337.33
Gray seal.......................        0.01        0.36      593.10      872.72        0.02        0.67        0.32      297.91     1181.15      555.33
Harbor seal.....................       <0.01        0.07      333.67      461.08       <0.01        0.13        0.06      268.75      529.17      272.98
Harp seal.......................       <0.01        0.33      715.48     1212.34        0.03        0.57        0.28      378.60     1674.77      786.14
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Each construction schedule includes a combination of pile sizes (4, 12, and 13 m), foundation types (monopiles or jackets), and installation
  methods (either vibratory setting of piles followed by impact pile driving or impact pile driving alone). Values in bold are changed from the proposed
  rule.
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts et al., 2022).
\b\ Listed as Endangered under the ESA.


 Table 23--Marine Mammal Exposure Estimates for Drilling During Construction Schedule A and Schedule B, Assuming
                                            10 dB Noise Attenuation a
----------------------------------------------------------------------------------------------------------------
                                                        Schedule A                       Schedule B
                    Species                     ----------------------------------------------------------------
                                                    Year 2       Year 3       Year 2       Year 3       Year 4
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \c\.................         2.59         1.32         1.97         1.44         0.98
Fin whale \c\..................................        15.13         6.18         8.83         9.01         3.85
Humpback whale.................................        10.23         4.75         6.74         6.16         3.20
Minke whale (migrating) \b\....................        38.79        16.85        27.73        25.30        12.87
Sei whale \c\ (migrating) \b\..................         1.92         1.03         1.47         1.12         0.76
Sperm whale \c\................................         3.17         1.45         1.80         1.75         0.67
Atlantic spotted dolphin.......................         7.42         3.43         4.19         3.51         1.73
Atlantic white sided dolphin...................        93.80        43.60        63.53        56.43        30.47
Bottlenose dolphin, offshore...................        77.19        34.63        45.58        44.48        19.90
Common dolphin.................................       877.24       377.50       515.72       485.77       210.11
Long-finned pilot whale........................        10.16         4.62         6.16         5.85         2.77
Short-finned pilot whale.......................         2.54         1.15         1.54         1.46         0.69
Risso's dolphin................................         5.73         2.55         3.30         3.11         1.34
Harbor porpoise (sensitive) \b\................        71.60        34.46        50.91        39.30        24.34
Gray seal......................................        33.81        19.32        27.62        19.27        14.80
Harbor seal....................................        50.72        28.97        41.43        28.91        22.20
Harp seal......................................        36.23        20.70        29.59        20.65        15.86
----------------------------------------------------------------------------------------------------------------
Note: No Level A harassment is expected or may be authorized for drilling. Drilling exposure estimates are based
  on the assumption that 48 days under either Schedule A or Schedule B would require drilling. Estimated
  exposures are from the full drilling schedule; final take request does not include drilling exposures on days
  when both vibratory setting and drilling occur on the same day to avoid double counting because all animals
  within the larger vibratory hammering zone of influence were assumed to have already been taken by that
  activity. A total of 17 days (8 days in year 1, 9 days in year 2) of drilling exposures in Construction
  Schedule A were not included in the final take request. A total of 13 days (9 in year 1, 2 in year 2, and 2 in
  year 3) of drilling exposures in Construction Schedule B were not included in the final take request.
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et
  al., 2016; Roberts et al., 2022).
\b\ Listed as Endangered under the ESA.


   Table 24--Maximum Annual Amount of Take That May Be Authorized by Level A and Level B Harassments From Pile
 Driving Associated With WTG and ESP Total Installation Events for Construction Schedule A and B, Assuming 10 dB
                                              of Noise Attenuation
----------------------------------------------------------------------------------------------------------------
                                          Year 2 (2026)             Year 3 (2027)             Year 4 (2028)
                                   -----------------------------------------------------------------------------
              Species                 Level A      Level B      Level A      Level B      Level A      Level B
                                     harassment   harassment   harassment   harassment   harassment   harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\....            0           18            0           39            0           17
Fin whale.........................            6          100           20          181            8           64
Humpback whale....................            6           67           17          120            8           52
Minke whale.......................           17          233           86          443           38          193
Sei whale.........................            1           10            3           23            2           12

[[Page 52264]]

 
Sperm whale.......................            0           26            0           52            0           17
Atlantic spotted dolphin..........            0           78            0          136            0           42
Atlantic white sided dolphin......            0          794            0         1635            0          736
Bottlenose dolphin, offshore......            0          795            0         2007            0          738
Common dolphin....................            0        11613            0        25942            0         9664
Long-finned pilot whale...........            0           92            0          193            0           72
Short-finned pilot whale..........            0            9            0            9            0            9
Risso's dolphin...................            0          159            0          446            0          139
Harbor porpoise...................            2          423           11          787            5          295
Gray seal.........................            1          574            1         1172            1          550
Harbor seal.......................            1          304            1          497            1          253
Harp seal.........................            1          685            1         1647            1          770
----------------------------------------------------------------------------------------------------------------
Note: Schedule A has the maximum amount of take reasonably likely to occur in Y2 and Y3 while Schedule B has the
  maximum for Y4. Double counting of take has been removed.
\a\ While exposures were estimated, the level of mitigation required for North Atlantic right whales results in
  take by Level A harassment to be unlikely to occur, hence, no take by Level A harassment for North Atlantic
  right whales was requested nor would be authorized by NMFS.


  Table 25--Maximum Annual Amount of Take That May Be Authorized by Level B Harassment From Drilling Associated
      With WTG and ESP Total Installation Events for Construction Schedule A and B, Assuming 10 dB of Noise
                                                   Attenuation
----------------------------------------------------------------------------------------------------------------
                                          Year 2 (2026)             Year 3 (2027)             Year 4 (2028)
                                   -----------------------------------------------------------------------------
              Species                 Level A      Level B      Level A      Level B      Level A      Level B
                                     harassment   harassment   harassment   harassment   harassment   harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale........            0            3            0            2            0            1
Fin whale.........................            0           11            0            9            0            4
Humpback whale....................            0            9            0            6            0            3
Minke whale.......................            0           32            0           24            0           13
Sei whale.........................            0            2            0            2            0            1
Sperm whale.......................            0            3            0            2            0            1
Atlantic spotted dolphin..........            0            7            0            3            0            1
Atlantic white sided dolphin......            0           80            0           50            0           24
Bottlenose dolphin, offshore......            0           57            0           40            0           16
Common dolphin....................            0          666            0          408            0          156
Long-finned pilot whale...........            0            8            0            6            0            3
Short-finned pilot whale..........            0            2            0            2            0            1
Risso's dolphin...................            0            5            0            3            0            1
Harbor porpoise...................            0           60            0           36            0           20
Gray seal.........................            0           33            0           19            0           12
Harbor seal.......................            0           49            0           28            0           17
Harp seal.........................            0           35            0           20            0           12
----------------------------------------------------------------------------------------------------------------
Note: Schedule A has the maximum amount of take reasonably likely to occur in Y2 and Y3 while Schedule B has the
  maximum for Y4. Take does not include level B harassment from drilling on days when both vibratory setting and
  drilling occur on the same day to avoid double counting.


 Table 26--Annual Take, by Level A and Level B Harassments, That May Be Authorized for All Foundation Installation Activities for Construction Schedule
                                                        B, Assuming 10 dB of Noise Attenuation a
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Impact and vibratory pile driving                                      Drilling
                                    --------------------------------------------------------------------------------------------------------------------
                                           Year 2 (2026)             Year 3 (2027)             Year 4 (2028)          Year 2       Year 3       Year 4
              Species               ------------------------------------------------------------------------------    (2026)       (2027)       (2028)
                                                                                                                  --------------------------------------
                                       Level A      Level B      Level A      Level B      Level A      Level B      Level B      Level B      Level B
                                      harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.........            0           13            0           39            0           17            2            2            1
Fin whale..........................            5           88           20          181            8           64            6            9            4
Humpback whale.....................            4           59           17          120            8           52            5            6            3
Minke whale........................           16          232           86          443           38          193           21           24           13
Sei whale..........................            1            9            3           23            2           12            2            2            1
Sperm whale........................            0           23            0           52            0           17            1            2            1
Atlantic spotted dolphin...........            0           45            0          136            0           42            1            3            1
Atlantic white sided dolphin.......            0          696            0         1635            0          736           42           50           24
Bottlenose dolphin, offshore.......            0          622            0         2007            0          738           24           40           16
Common dolphin.....................            0         9332            0        25942            0         9664          204          408          156

[[Page 52265]]

 
Long-finned pilot whale............            0           75            0          193            0           72            4            6            3
Short-finned pilot whale...........            0            9            0            9            0            9            1            2            1
Rissos dolphin.....................            0           92            0          446            0          139            2            3            1
Harbor porpoise....................            2          363           11          787            5          295           37           36           20
Gray seal..........................            1          286            1         1172            1          550           25           19           12
Harbor seal........................            1          253            1          497            1          253           37           28           17
Harp seal..........................            1          361            1         1647            1          770           26           20           12
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ As construction Schedule B has the highest total take by harassment for foundation installation, this table represents the sum of the takes from
  Schedule B only and not the sum of the preceding columns within the previous tables. Schedule B has been used to set the total 5-Y take amounts that
  may be authorized for Level B harassment. Take does not include Level B harassment from drilling on days when both vibratory setting and drilling
  occur on the same day to avoid double counting.

UXO/MEC Detonations
    Avangrid may detonate up to 10 UXO/MECs within the project area 
with no more than six in 2025 (year 1) and four in 2026 (year 2); no 
more than one detonation per 24-hour period would occur. Avangrid 
adopted the U.S. Navy's charge weight bins (E4, E6, E8, E10, and E12) 
to determine potential impacts to marine mammals from UXO/MEC 
detonation. As described in the proposed rule, Avangrid applied 
modeling results from the Revolution Wind project to its analysis. This 
modeling evaluated the effects thresholds for TTS, PTS, non-auditory 
injury, and mortality based on the 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. The 
exact type and net explosive weight of UXO/MECs that may be detonated 
are not known at this time. However, based on the results of a UXO/MECs 
desktop study (Mills, 2021), Avangrid does not expect that 10 of the 
largest charge weight (bin E12) UXO/MECs will be present, but a 
combination of different sizes. For the 10 UXO/MECs, the model 
estimated the E12 charge weight with 2 detonations at 12 m, 3 
detonations at 20 m, 3 detonations at 30 m, and 2 detonations at 40 m.
    Mortality and non-auditory injury to lung and gastrointestinal 
organs were considered in the modeling study (Hannay and Zykov, 2022). 
As described in the proposed rule, peak pressure and acoustic impulse 
levels and effects threshold exceedance zones depend only on charge 
weight, water depth, animal mass, and submersion depth. The maximum 
distance to gastrointestinal injury (1 percent of exposed animals) due 
to peak pressure for detonating an E12-size UXO/MEC at all sites 
assuming 10 dB of attenuation is 125 m (Hannay and Zykov, 2022). The 
maximum distance modeled to the onset of lung injury due to detonating 
an E12-size UXO/MEC assuming 10 dB of attenuation is 237 m for baleen 
whales, 330 m for pilot and minke whales, 448 m for beaked whales, 606 
m for delphinids, Kogia, and pinnipeds, and 648 m for harbor porpoise 
(table 27). Assuming 10 dB of attenuation, the impulse-based maximum 
distance to the onset of mortality is 353 m (porpoises) (table 27).

 Table 27--UXO/MEC Impulse Exceedance Distances (Meters) for Marine Mammals for the Detonation of an E12 UXO/MEC, for Onset of Lung Injury and Mortality
                                                      at Various Depths Assuming 10 dB Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      12 m water depth          20 m water depth          30 m water depth          45 m water depth
               Marine mammal group               -------------------------------------------------------------------------------------------------------
                                                    Calf/pup      Adult       Calf/pup      Adult       Calf/pup      Adult       Calf/pup      Adult
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Onset of Lung Injury (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baleen whales and Sperm whale...................          151           73          204           80          226           81          237           78
Pilot and Minke whales..........................          192          103          272          126          310          131          330          132
Beaked whales...................................          250          171          366          237          413          267          448          282
Dolphins, Kogia, and Pinnipeds..................          347          241          508          351          557          400          606          429
Porpoises.......................................          377          260          541          381          594          429          648          465
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Onset of mortality (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baleen whales and Sperm whale...................           90           34          105           34          109           31          108           29
Pilot and Minke whales..........................          120           56          150           58          157           57          162           50
Beaked whales...................................          161          105          206          127          220          132          234          135
Dolphins, Kogia, and Pinnipeds..................          228          154          285          198          308          211          332          224
Porpoises.......................................          248          167          307          215          330          231          353          243
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Avangrid 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 Avangrid will be employing 
multiple platforms to visually monitor marine mammals as well as 
conducting PAM and must only detonate UXO/MECs during daylight

[[Page 52266]]

hours, 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. 
As described below, in consideration of the distances to the associated 
thresholds and the implementation of the required mitigation and 
monitoring measures, Avangrid did not request and NMFS does not 
anticipate and may not authorize take by mortality or non-auditory 
injury. All modeling results, including mortality and non-auditory 
injury, can be found in appendix A for Avangrid's ITA application 
(Hannay and Zykov, 2022), as found on NMFS' website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable).
    Distances to PTS and TTS thresholds for all UXO/MEC charge weights 
were also calculated by Avangrid. In the proposed rule, we only 
described the distances to thresholds for the largest E12 charge 
weight. However, in the event that Avangrid will be able to identify 
and mitigate at the relevant distances for each specific charge weight, 
we have incorporated the maximum values for each charge weight size 
herein. It is not currently known how easily the size and charge 
weights of UXO/MECs can be identified in the field. Avangrid must 
demonstrate to NMFS that it is able to accurately identify charge 
weights in the field prior to detonation otherwise the largest charge 
weight, E12, will be assumed and the appropriate associated mitigation 
and monitoring measures implemented. Tables 28 and 29 contain the 
maximum (ER95%) modeled distances by Hannay and 
Zykov (2022) to PTS and TTS thresholds during UXO/MEC detonation for 
each charge weight bin.

  Table 28--Maximum SEL-Based R95% PTS-Onset Ranges, in Meters, From All Site Modeled During UXO/MEC Detonation by Charge Weight, Assuming 10-dB Sound
                                                                       Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     2.3 kg (5.1 lbs)        9.1 kg (20.1 lbs)      45.5 kg (100.3 lbs)      227 kg (500 lbs)      454 kg (1,000.9 lbs)
                                 -----------------------------------------------------------------------------------------------------------------------
   Marine mammal hearing group     Rmax \a\    R95% \b\
                                                             Rmax        R95%        Rmax        R95%        Rmax        R95%        Rmax        R95%
--------------------------------------------------------------------------------------------------------------------------------------------------------
LFC.............................         632         552       1,230         982       2,010       1,730       3,370       2,970       4,270       3,780
MFC.............................         <50         <50          79          75         175         156         419         337         535         461
HFC.............................       2,100       1,820       3,020       2,590       4,400       3,900       6,130       5,400       6,960       6,200
PP..............................         192         182         413         357         822         690       1,410       1,220       1,830       1,600
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds.
\a\ Represents the maximum distance in any direction that the threshold was exceeded. This metric is often overly conservative for take estimates
  because it reflects the influence of coherent constructive interference effects, produced by most propagation loss models, due to model approximations
  of highly uniform environments. In practice, these coherent effects are almost always disrupted by rough interfaces and ocean inhomogeneities.
\b\ Represents the radius of a circle that encompasses 95 percent of the area predicted by the model to exceed the threshold. The circle radius is
  typically larger than the maximum distances in most directions, but it cuts off ``fingers'' of ensonification that protrude in a small number of
  directions. This metric is typically also conservative, but less so than the Rmax distance.


  Table 29--Maximum SEL-Based R95% TTS-Onset Ranges, in Meters, From All Site Modeled During UXO/MEC Detonation by Charge Weight, Assuming 10-dB Sound
                                                                       Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     2.3 kg (5.1 lbs)        9.1 kg (20.1 lbs)      45.5 kg (100.3 lbs)      227 kg (500 lbs)      454 kg (1,000.9 lbs)
                                 -----------------------------------------------------------------------------------------------------------------------
   Marine mammal hearing group     Rmax \a\    R95% \b\
                                                             Rmax        R95%        Rmax        R95%        Rmax        R95%        Rmax        R95%
--------------------------------------------------------------------------------------------------------------------------------------------------------
LFC.............................       3,140       2,820       5,230       4,680       8,160       7,490      11,700      10,500      13,500      11,900
MFC.............................         535         453         910         773       1,520       1,240       2,400       2,120       2,930       2,550
HFC.............................       6,920       6,160       8,970       8,000      11,300      10,300      14,600      12,900      15,600      14,100
PP..............................       1,730       1,470       2,710       2,350       4,340       3,820       6,640       5,980       7,820       7,020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds.
\a\ Represents the maximum distance in any direction that the threshold was exceeded. This metric is often overly conservative for take estimates
  because it reflects the influence of coherent constructive interference effects, produced by most propagation loss models, due to model approximations
  of highly uniform environments. In practice, these coherent effects are almost always disrupted by rough interfaces and ocean inhomogeneities.
\b\ Represents the radius of a circle that encompasses 95 percent of the area predicted by the model to exceed the threshold. The circle radius is
  typically larger than the maximum distances in most directions, but it cuts off ``fingers'' of ensonification that protrude in a small number of
  directions. This metric is typically also conservative, but less so than the Rmax distance.

    To estimate the maximum ensonified zones that could result from 
UXO/MEC detonations, the area distances in Li and Koessler (2022) table 
J-5 were multiplied by the highest monthly species density in the 
deepwater OECC segment and the SWDA for the 20-45 m depths, and by the 
highest monthly species density in the shallow water OECC segment for 
the 12 m depth. The result of the areas multiplied by the densities 
were then multiplied by the number of UXO/MECs estimated at each of the 
depths to calculate total estimated exposures. To calculate potential 
marine mammal exposures, Avangrid assumed all charge weights belong in 
the largest E12 class; therefore, the largest acoustic range 
(R95%t; assuming 10 dB of 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 
ensonified area distances were multiplied by the highest monthly 
species density in the deepwater OECC segment and the lease area (SWDA) 
for the 20-45 m depths, and by the highest monthly species density in 
the shallow water OECC segment for the 12 m depth (using a 14.1-km 
buffer) and the combined deepwater segment of the OECC and SWDA (20 m-
45 m depths; using a 13.8-km buffer).
    As a conservative approach, the month with the highest density 
among the areas of interest for each species was carried forward to the 
exposure calculations (i.e., assumed all UXO/MECs would be detonated in 
the month with the greatest average monthly density). In some cases 
where monthly densities were unavailable, annual densities were used 
instead for some species (i.e., blue whales, pilot whale spp.). 
Additionally, the pilot whale guild, harbor seals, gray seals, and harp 
seals were scaled by relative abundance following the same approach 
previously described. The resulting maximum density was multiplied by 
the number of UXO/MECs estimated at each of the

[[Page 52267]]

depths to calculate total estimated exposures. Table 30 provides the 
maximum species-specific densities for the Project and resulting take 
calculations using the described approach. As described above, Avangrid 
based the amount of take requested for authorization on the number of 
exposures estimated assuming 10 dB of attenuation using a NAS, NAS 
would be required during all detonations.
    The likelihood of marine mammal exposures above the PTS threshold 
is low, especially considering the instantaneous nature of the acoustic 
signal and that Avangrid would conduct extensive monitoring, delaying a 
detonation should a marine mammal be within the PTS distances. However, 
some species, such as harbor porpoise and seals are difficult to detect 
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, 
Avangrid requested, and NMFS may authorize, takes by Level A harassment 
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, Avangrid requested and NMFS may authorize under 
this rulemaking take by Level A harassment of gray seals, harbor seals, 
and harp seals incidental to UXO/MEC detonation. Given the extensive 
monitoring, it is likely that all PTS of large whales would be avoided. 
However, in the unexpected circumstance that a large whale other than a 
North Atlantic right whale (i.e., fin whale, humpback whale, minke 
whale, sei, and sperm whales) is missed during monitoring, Avangrid 
requested, and NMFS may authorize, a very small amount of Level A 
harassment incidental to UXO/MEC detonation. Due to the mitigation and 
monitoring measures required specifically for North Atlantic right 
whales (e.g., clearance zone is ``any distance''; table 36), it is 
unlikely that North Atlantic right whales will be missed during 
monitoring. Therefore, take by Level A harassment is not expected to 
occur; Avangrid did not request and NMFS is not authorizing take by 
Level A harassment of North Atlantic right whales. Given that North 
Atlantic right whales are reported frequently, Avangrid would be 
required to monitoring the sighting network for this species, and 
conduct acoustic monitoring, it is not expected that a North Atlantic 
right whale would be missed during monitoring and therefore, Level A 
harassment of this species is not requested and NMFS may not authorize 
incidental to UXO/MEC detonation.

 Table 30--Maximum Monthly Marine Mammal Densities (Individuals/100 km\2\) Within the Project Area With UXO/MEC Detonation Associated Level A Harassment
                             (PTS) and Level B Harassment (TTS SEL) Exposure Assuming 10 dB Attenuation, and Estimated Take
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Shallow OECC      Deep OECC        2025 Estimated take       2026 Estimated take
                                                                    maximum monthly  maximum monthly ---------------------------------------------------
                              Species                                   density          density
                                                                      (individual/     (individual/     Level A      Level B      Level A      Level B
                                                                       100 km\2\)       100 km\2\)     harassment   harassment   harassment   harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\ \b\................................            0.116            0.707            0           14            0           13
Fin whale \a\.....................................................            0.007            0.425            1            7            1            7
Humpback whale....................................................             0.04            0.297            1            5            1            5
Minke whale.......................................................            0.129             1.72            4           28            3           27
Sei whale \a\.....................................................            0.034            0.191            1            4            1            3
Sperm whale \a\...................................................            0.002            0.112            1            1            1            1
Atlantic spotted dolphin..........................................            0.013            0.448            1            1            1            1
Atlantic white-sided dolphin......................................            0.051            3.278            1            3            1            3
Bottlenose dolphin, offshore......................................            0.158            1.631            1            2            1            2
Common dolphin....................................................             0.35           24.845            1           19            1           19
Long-finned pilot whale...........................................                0            0.135            1            1            1            1
Short-finned pilot whale..........................................                0              0.1            1            1            1            1
Risso's dolphin...................................................             0.01            0.176            1            1            1            1
Harbor porpoise...................................................            1.772           10.608           56          217           51          193
Gray seal.........................................................           24.506           13.647            8          146            4           80
Harbor seal.......................................................           55.059           30.662           17          328            8          179
Harp seal.........................................................           24.506           13.647            8          146            4           80
--------------------------------------------------------------------------------------------------------------------------------------------------------
 \a\ Denotes species listed under the ESA.
 \b\ Due to the extensive mitigation and monitoring measures specific to North Atlantic right whales for UXO/MEC detonations, it is not reasonable to
  expect that take by Level A harassment will occur, therefore, Avangrid did not request and NMFS may not authorize, take by Level A harassment of North
  Atlantic right whales.

HRG Surveys
    Avangrid's planned HRG survey activity includes the use of 
impulsive sources (i.e., boomers and sparkers) that have the potential 
to harass marine mammals. The acoustic sources expected to result in 
marine mammal harassment, as defined under the MMPA, are provided in 
table 3 of the proposed rule (88 FR 37606, June 8, 2023) and remain 
unchanged in this final rule. If authorized, takes will be by Level B 
harassment only in the form of disruption of behavioral patterns for 
individual marine mammals resulting from exposure to noise from certain 
HRG acoustic sources. Based primarily on the characteristics of the 
signals produced by the acoustic sources planned for use, Level A 
harassment is neither anticipated, even absent mitigation, nor planned 
to be authorized. Please see Avangrid's application for details of a 
quantitative exposure analysis (i.e., calculated distances to Level A 
harassment isopleths and Level A harassment exposures). Further, there 
is no evidence to suggest that serious injury or mortality is a 
potential outcome of exposure to HRG survey sources, and none is 
anticipated.

[[Page 52268]]

    Therefore, the potential for Level A harassment from HRG surveys is 
not evaluated further in this document. Avangrid did not request, and 
NMFS may not authorize, take by Level A harassment incidental to HRG 
surveys. No serious injury or mortality is anticipated to result from 
HRG survey activities.
    Specific to HRG surveys, in order to better consider the narrower 
and directional beams of the sources, NMFS has developed a tool for 
determining the sound pressure level (SPLrms) at the 160-dB 
isopleth for the purposes of estimating the extent of Level B 
harassment isopleths associated with HRG survey equipment (NMFS, 2020). 
This methodology incorporates frequency-dependent absorption and some 
directionality to refine estimated ensonified zones. Avangrid 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.
    The isopleth distances corresponding to the Level B harassment 
threshold for each type of HRG equipment with the potential to result 
in harassment of marine mammals were calculated per ``NOAA Fisheries' 
Interim Recommendation for Sound Source Level and Propagation Analysis 
for High Resolution Geophysical Sources.'' The distances to the 160-dB 
RMS re 1 [mu]Pa isopleth for Level B harassment are presented in table 
31. Please refer to appendix I in Li and Koessler (2022) of the LOA 
application for a full description of the methodology and formulas used 
to calculate distances to the Level B harassment threshold.

   Table 31--Isopleth Distances in Meters (m) Corresponding to Level B Harassment Threshold for HRG Equipment
----------------------------------------------------------------------------------------------------------------
                                                                                    Horizontal
                                                                                   distance (m)
             HRG survey equipment                        Equipment type             to Level B      Ensonified
                                                                                    harassment     area (km\2\)
                                                                                     threshold
----------------------------------------------------------------------------------------------------------------
Applied Acoustics AA251 Boomer................  SBP: Boomer.....................             178           28.58
GeoMarine Geo Spark 2000 (400 tip)............  SBP: Sparker....................             141           22.62
----------------------------------------------------------------------------------------------------------------

    The survey activities that have the potential to result in Level B 
harassment (160 dB SPL) include the noise produced by Applied Acoustics 
AA251 Boomer or GeoMarine Geo Spark 2000 (400 tip) (table 31), of which 
the Applied Acoustics AA251 Boomer results in the greatest calculated 
distance to the Level B harassment criteria at 178 m (584 ft). Avangrid 
has applied the estimated distance of 178 m (584 ft) to the 160 
dBRMS90 percent re 1 [mu]Pa Level B harassment criteria as 
the basis for determining potential take from all HRG sources. All 
noise-producing survey equipment is assumed to be operated 
concurrently. Three vessels are assumed to be operating concurrently.
    The basis for the take estimate is the number of marine mammals 
that would be exposed to sound levels in excess of the Level B 
harassment threshold (160 dB). Typically, this is determined by 
estimating an ensonified area for the activity, by calculating the area 
associated with the isopleth distance corresponding to the Level B 
harassment threshold. This area is then multiplied by marine mammal 
density estimates in the Project Area and then corrected for seasonal 
use by marine mammals, seasonal duration of Project-specific noise-
generating activities, and estimated duration of individual activities 
when the maximum noise-generating activities are intermittent or 
occasional.
    The total area ensonified was estimated by considering the distance 
of the daily vessel track line (determined using the estimated average 
speed of the vessel and the 24-hour operational period within each of 
the corresponding survey segments) and the longest horizontal distance 
to the relevant acoustic threshold from an HRG sound source (full 
formula in section 6.6 of the ITA application). Using the larger 
distance of 178 m (164 ft)) to the 160 dBRMS90 percent re 1 
[mu]Pa Level B harassment isopleth (table 31), the estimated daily 
vessel track of approximately 80 km (49.7 mi) per vessel for 24-hour 
operations, inclusive of an additional circular area to account for 
radial distance at the start and end of a 24-hour cycle, estimates of 
the total area ensonified to the Level B harassment threshold per day 
of HRG surveys were calculated (table 31).
    Exposure calculations assumed that there would be 25 days of HRG 
surveying per year over each of the 5 years. As described in the ITA 
application, density data were mapped within the boundary of the 
Project Area using geographic information systems, these data were 
updated based on the revised data from the Roberts et al. (2022) model. 
Because the exact dates of HRG surveys are unknown, the highest density 
month for each species was used and carried forward in the take 
calculations (table 32).
    The calculated exposure estimates based on the exposure modeling 
methodology described above were compared with the best available 
information on marine mammal group sizes. Group sizes used for HRG take 
estimates were the same as those used for impact pile driving take 
estimation (section 6.1.2 in the ITA application). Avangrid also used 
data collected by PSOs on survey vessels operating during HRG surveys 
in 2020-2021 from their nearby Vineyard Wind project area. It was 
determined that the calculated number of potential takes by Level B 
harassment based on the exposure modeling methodology above may be 
underestimates for some species and therefore warranted adjustment 
using group size to ensure conservatism in the take numbers NMFS may 
authorize. Despite the relatively small modeled Level B harassment zone 
(178 m) for HRG survey activities, it was determined that adjustments 
to the requested numbers of take by Level B harassment for some dolphin 
species was warranted to be conservative (see below).
    For certain species for which the density-based methodology 
described above may result in potential underestimates of take and 
Avangrid's PSO sightings data were relatively low, adjustments to the 
exposure estimates were made based on the best available information on 
marine mammal group sizes to ensure conservatism. For species with 
densities too low in the region to provide meaningful modeled

[[Page 52269]]

exposure estimates (i.e., rare species), the take request is based on 
the average group size (table 11). For species not considered rare in 
the Project Area, but AMAPP data or Avangrid PSO data show a higher 
group size level than the Roberts et al. (2022) model, then the takes 
by Level B harassment requested for authorization were adjusted to one 
group size per day of HRG surveys (table 32).
    For species considered rare but that still have the small potential 
for occurrence in the Project area, takes by Level B harassment during 
HRG surveys were requested by Avangrid. This occurred for white-beaked 
dolphin, killer whale, and false killer whale. Avangrid based their 
takes requested for authorization on these species by using one group 
size per year in 3 of 5 years for species. Group sizes used were based 
on PSO observations during previous HRG surveys.

                 Table 32--Marine Mammal Densities Used in Exposure Estimates and Estimated Takes by Level B Harassment From HRG Surveys
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Maximum monthly   Annual exposure   Annual exposure                        5-Year total
                           Species                            density \a\ (No./ using the boomer      using the       Annual level B        level B
                                                                 100 km \2\)           \f\           sparker \g\     harassment take    harassment take
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\..............................             0.567              4.05              3.21                  5                 25
Fin whale \b\...............................................             0.436              3.11              2.47                  4                 20
Humpback whale..............................................             0.323              2.31              1.83                  3                 15
Minke whale.................................................             1.704             12.17              9.64                 13                 65
Sei whale \b\...............................................             0.193              1.38              1.09                  2                 10
Sperm whale\b\ \h\..........................................             0.111              0.79              0.62                  2                 10
Atlantic spotted dolphin \h\................................             0.404              2.88              2.28                 30                150
Atlantic white-sided dolphin \h\............................             3.406             24.34             19.26                 28                140
Bottlenose dolphin, offshore \h\............................             1.753             12.53              9.92                 18                 90
Common dolphin \c\..........................................            28.314             202.3            160.13                203              1,015
Long-finned pilot whale d h.................................             0.149              1.06              0.84                 17                 85
Short-finned pilot whale d h................................              0.11              0.78              0.62                  9                 45
Risso's dolphin \h\.........................................             0.187              1.34              1.06                  7                 35
False Killer whale \i\......................................               N/A               N/A               N/A                  5                 15
Killer whale \i\............................................               N/A               N/A               N/A                  2                  6
White-beaked dolphin \i\....................................               N/A               N/A               N/A                 30                 90
Harbor porpoise.............................................            10.974             78.41             62.07                 79                395
Gray seal \e\...............................................            27.901            199.35             157.8                200              1,000
Harbor seal \e\.............................................            62.687            447.89            354.54                448              2,240
Harp seal \e\...............................................            27.901            199.35             157.8                200              1,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Cetacean density values from the Roberts et al. (2016, 2022) model.
\b\ Listed as Endangered under the ESA.
\c\ Take rounded up to one group size.
\d\ Long- and short-finned pilot whale densities are the annual pilot whale guild density scaled by their relative abundances.
\e\ Gray and harbor seal densities are the seals guild density scaled by their relative abundances; gray seals are used as a surrogate for harp seals.
\f\ Applied Acoustics AA251 boomer.
\g\ GeoMarine Geo Spark 2000.
\h\ Annual take by Level B harassment is rounded up to one group size.
\i\ Rare species total take estimates are based on the assumption that a group would be seen every other year; hence, the 5-yr total is less than the
  sum of each year.

Total Authorized Take Across All Activities

    The amount of Level A harassment and Level B harassment NMFS may be 
authorizing incidental to all project activities combined (i.e., pile 
driving and drilling to install WTG and ESP monopile and jacket 
foundations, UXO/MEC detonations, and HRG surveys) are shown in table 
33. The annual amount of take which may be authorized reflects the 
maximum number of take that may occur in each year, based on Avangrid's 
current schedules, as provided in table 1. Year 1 (2024) take estimates 
include HRG surveys and UXO/MEC detonations. Year 2 take includes all 
activities occurring: WTG and ESP foundation installation, HRG surveys, 
and UXO/MEC detonation. Year 3 includes WTG and ESP foundation 
installation and HRG surveys. Year 4 take includes WTG and ESP 
foundation installation (assuming construction schedule B) and HRG 
surveys. Year 5 take includes HRG surveys only. All activities are 
expected to be completed by 2030, equating to the 5 years of 
activities, as described in this preamble. NMFS recognizes that 
schedules may shift due to a number of planning and logistical 
constraints such that take may be redistributed throughout the 5 years. 
However, the total 5-year amount of take for each species, shown in 
table 33, and the maximum annual take in any one year (table 35) must 
not be exceeded. Additionally, to reduce impacts to marine mammals, 
NMFS has required several mitigation and monitoring measures, provided 
in the Mitigation and Monitoring and Reporting sections, which are 
activity-specific and are designed to minimize acoustic exposures to 
marine mammal species.
    For common and uncommon, though not ``rare,'' species where the 
exposure estimate was less than the mean group size, it was assumed 
that if one group member was exposed, then the entire group would be 
exposed. For species where the annual number of predicted exposures was 
less than the mean group size, the annual take was increased to the 
mean group size rounded up to the nearest integer. The only species 
this applied to are the sei whale, Atlantic spotted dolphin, Risso's 
dolphin, and sperm whale. Because pile driving would occur over either 
2 or 3 years, the mean group size rule was carried over from each of 
the annual take estimates to the total take estimates for the entire 
construction schedule to account for the possibility that a single 
exposure could occur in every year of a given construction schedule.
    For species that are considered rare but still have the slight 
potential for occurrence in the Project area, Avangrid requested an 
amount of annual take

[[Page 52270]]

assuming one group size of that species may be harassed in any given 
year. However, due to how rare these species are in the project area, 
it is not assumed that they would be encountered every year, instead, a 
group is anticipated to occur only every other year; hence the total 
amount of take of the 5 years is less than the sum of the annual take 
across all 5 years. As described above, takes for these species are 
based on PSO sighting group sizes or on group size from OBIS data. NMFS 
concurs with this assessment and may authorize takes by Level A 
harassment and/or Level B harassment for these rare species (table 33).
    The amount of take that Avangrid requested, and NMFS may authorize 
is considered conservative. NMFS does not typically authorize take of 
rare species in these circumstances; however, given the amount of 
foundation installation activities that Avangrid is proposing to 
undertake (i.e., installation of up to 129 WTG and 2-5 ESP positions), 
the large harassment zone sizes estimated from foundation installation, 
the duration of the foundation installation (up to 3 years), that 
marine mammal distribution is changing and that foundation installation 
is not scheduled to begin until 2026, NMFS is proposing to allow take 
for rare species. The one exception is the request for take of beluga 
whales. There is no beluga whale stock in the U.S. Atlantic and the 
potential for a beluga whale to occur is incredibly unlikely. Hence, 
NMFS may not authorize take of beluga whales.
    For the species for which modeling was conducted, the allowable 
take is considered conservative for a number of reasons. The amount of 
take that may be authorized assumes the most impactful scenario with 
respect to project design and schedules. As described in the 
Description of Specific Activities section, Avangrid plans to use 
monopile and jacket foundations (inclusive of bottom-frame foundations) 
for all permanent structures (i.e., WTGs and ESPs). The take that NMFS 
may authorize for pile driving assumed a maximum piling schedule of two 
monopiles and four pin piles installed per 24-hour period. The take 
numbers NMFS may authorize for pile driving are conservatively based on 
the maximum densities across the construction months. The take numbers 
that NMFS may authorize for Level A harassment do not fully account for 
the likelihood that marine mammals would avoid a stimulus when possible 
before the individual accumulates enough acoustic energy to potentially 
cause auditory injury, nor do these numbers account for the 
effectiveness of the required mitigation measures.
    If authorized, takes by Level A harassment and Level B harassment 
for the combined activities of pile driving and drilling during the 
installation of monopiles and pin piles (assuming 10 dB of sound 
attenuation), UXO/MEC detonation, and HRG surveys are provided in 
tables 33 and 34. NMFS also presents the percentage of each marine 
mammal stock estimated to be taken based on the total amount of annual 
take in table 35. To inform the negligible impact analysis, NMFS 
assesses the greatest amount of take of marine mammals allowable in 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 
5 years of the rule. Table 35 also depicts the amount of take relative 
to each stock assuming that each individual is taken only once, which 
specifically informs the small numbers determination. Table 34 provides 
the total take that may be authorized from the entire 5-year effective 
period of the rule and, if issued, associated LOA.
    As a result of the updated modeling for impact pile driving, 
vibratory pile driving, and drilling, takes by Level A harassment and 
Level B harassment decreased for many species (values in bold in table 
33, 34, and 35). Rare species, having not been included in the modeling 
for the proposed or final rule, as they are based on OBIS or PSO 
sighting data, are unchanged since the proposed rule with the exception 
of the Northern bottlenose whale. Northern bottlenose whale takes by 
Level B harassment decreased from 12 to 8 as a result of a correction 
submitted in the January 2024 Application Update by Avangrid (as 
previously described in the Changes in Information Provided in the 
Preamble).

[[Page 52271]]



                                 Table 33--Level A Harassment and Level B Harassment Takes for All Activities That May Be Authorized During the Construction and Development of the Project Over 5 Years
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Year 1                    Year 2                    Year 3                    Year 4                    Year 5                       Total 5-y take
                                                               -------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                                                             Total Takes
                            Species                               Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B         by
                                                                 harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   Harassment
                                                                                                                                                                                                                                 \e\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale....................................            0           19            0           39            0           46            0           23            0            5            0          126           126
Blue whale....................................................            0            0            1            2            1            2            1            2            0            0            2            4             6
Fin whale.....................................................            1           11            7          122           20          194            8           72            0            4           35          386           421
Humpback whale................................................            1            8            7           84           17          129            8           58            0            3           31          270           301
Minke whale...................................................            4           41           20          305           86          480           38          219            0           13          147         1046          1193
Sei whale.....................................................            1            6            2           17            3           27            2           15            0            2            8           66            74
Sperm whale...................................................            1            3            1           32            0           56            0           20            0            2            2          108           110
Dwarf sperm whale.............................................            0            0            2            2            2            2            2            2            0            0            4            4             8
Pygmy sperm whale.............................................            0            0            2            2            2            2            2            2            0            0            4            4             8
Cuvier's beaked whale.........................................            0            0            0            3            0            3            0            3            0            0            0            6             6
Blainville's beaked whale.....................................            0            0            0            4            0            4            0            4            0            0            0            8             8
Gervais' beaked whale.........................................            0            0            0            4            0            4            0            4            0            0            0            8             8
Sowerby's beaked whale........................................            0            0            0            4            0            4            0            4            0            0            0            8             8
True's beaked whale...........................................            0            0            0            3            0            3            0            3            0            0            0            6             6
Northern bottlenose whale \d\.................................            0            0            0            4            0            4            0            4            0            0            0            8             8
Atlantic spotted dolphin......................................            1           31            1          116            0          169            0           73            0           30            2          380           382
Atlantic white sided dolphin..................................            1           31            1          905            0         1713            0          788            0           28            2         3329          3331
Bottlenose dolphin, offshore..................................            1           20            1          872            0         2065            0          772            0           18            2         3541          3543
Clymene dolphin...............................................            0            0            0          167            0          167            0          167            0            0            0          334           334
Common dolphin................................................            1          222            1        12501            0        26553            0        10023            0          203            2        46759         46761
Long-finned pilot whale.......................................            1           18            1          118            0          216            0           92            0           17            2          440           442
Short-finned pilot whale......................................            1           10            1           21            0           20            0           19            0            9            2           78            80
Risso's dolphin...............................................            1            8            1          172            0          456            0          147            0            7            2          720           722
False killer whale............................................            0            5            0            7            0           12            0            7            0            5            0           25            25
Fraser's dolphin..............................................            0            0            0          192            0          192            0          192            0            0            0          384           384
Killer whale..................................................            0            2            0            8            0           10            0            8            0            2            0           10            10
Melon-headed whale............................................            0            0            0          109            0          109            0          109            0            0            0          218           218
Pantropical Spotted dolphin...................................            0            0            0           60            0           60            0           60            0            0            0          120           120
Pygmy killer whale............................................            0            0            0            5            0            5            0            5            0            0            0           10            10
Rough-toothed dolphin.........................................            0            0            0           14            0           14            0           14            0            0            0           28            28
Spinner dolphin...............................................            0            0            0           51            0           51            0           51            0            0            0          102           102
Striped dolphin...............................................            0            0            0           64            0           64            0           64            0            0            0          128           128
White-beaked dolphin..........................................            0           30            0           14            0           44            0           14            0           30            0          150           150
Harbor porpoise...............................................           56          296           53          755           11          902            5          394            0           79          125         2343          2468
Gray seal.....................................................            8          346            5          887            1         1391            1          762            0          200           15         3290          3305
Harbor seal...................................................           17          776            9          980            1          973            1          718            0          448           28         3832          3860
Harp seal.....................................................            8          346            5         1000            1         1867            1          982            0          200           15         4062          4077
Hooded seal...................................................            0            0            0            1            0            1            0            1            0            0            0            2             2
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The annual takes are the maximum between the two construction schedules (A or B); therefore, year 2 is the maximum annual takes under Schedule A while years 3 and 4 are the maximum annual takes under Schedule B. As the total 5-
  Y takes for Schedule B are more than Schedule A, the total takes that may be authorized is based on Schedule B. Therefore, the sum of the annual takes that may be authorized do not add up to the total 5-Y takes which may be
  authorized. Values in bold for the 5-Y takes are less than in the proposed rule.
\a\ The final rule and LOA, if issued, would be effective from March 27, 2025 to March 26, 2030.

[[Page 52272]]

 
\b\ For days when pile installation includes both vibratory setting and drilling, only the vibratory setting Level B harassment takes are included (because more takes are predicted for this activity) and not the drilling Level B
  takes to avoid double counting. For the purpose of this take request, year 1 is assumed to be 2025. These dates reflect the currently projected construction start year and are subject to change because exact project start dates
  and construction schedules are not currently available.
\c\ Rare species in the project area. Rare species total take estimates for the project are based on the assumption that a group would be seen every other year; hence, the 5-Y total is less than the sum of all years combined.
\d\ Northern bottlenose whale takes by Level B harassment has been decreased from 12 to 8 as a result of a typo correction submitted in the January 2024 Application Update by Avangrid. Avangrid had previously not adjusted the total
  take request for this rare species by assuming encounters every other year but instead had unintentionally summed all annual takes at the time of the proposed rule.
\e\ The amount of total takes for 5-Y, is the sum of the 5-Y takes by Level A harassment and takes by Level B harassment.


[[Page 52273]]

    In making the negligible impact determination and the necessary 
small numbers finding, NMFS assesses the maximum total number of takes 
(Level A harassment and Level B harassment) of marine mammals species 
or stocks allowable within any one year, and in the negligible impact 
determination we also assess the impacts of the total take allowable 
over the 5-year period. In this calculation, the maximum estimated 
number of Level A harassment takes in any one year is summed with the 
maximum estimated number of Level B harassment takes in any one year 
for each species to yield the highest number of estimated take that 
could occur in any year (table 35). We recognize that certain 
activities could shift within the 5-year effective period of the rule 
and the rule allows for that flexibility, however, the takes are not 
allowed to exceed the maximum annual take shown in table 35 in any 
year. Of note, the maximum amount of take by Level A harassment is 
higher for some species in year 1 due to UXO/MEC detonations, though 
year 3 has the maximum amount of take when takes by Level A harassment 
is combined with those from Level B harassment. As schedules may shift, 
and to not underestimate the amount of takes by harassment, the takes 
under UXO/MEC detonation have been moved to Year 3 (table 34). Year 3 
is the year with the maximum amount of take for foundation installation 
and maximum amount of take when Level A harassment and Level B 
harassment are combined (table 34).

 Table 34--Maximum Number of Takes by Harassment That May Be Authorized Under Year 1 UXO/MEC Detonation Added to
        the Maximum Number of Takes That May Be Authorized for Year 3 To Create the Maximum Annual Takes
----------------------------------------------------------------------------------------------------------------
                                UXO/MEC      UXO/MEC
                                maximum      maximum       Year 3       Year 3    Total  maximum  Total  maximum
           Species               year 1       year 1      maximum      maximum    annual Level A  annual Level B
                                Level A      Level B      Level A      Level B    harassment \a\  harassment \a\
                               harassment   harassment   harassment   harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale              0           14            0           46               0              60
 \c\........................
Blue whale \c\ \d\..........            0            0            1            2               1               2
Fin whale \c\...............            1            7           20          194              21             201
Humpback whale..............            1            5           17          129              18             134
Minke whale.................            4           28           86          480              90             508
Sei whale \c\...............            1            4            3           27               4              31
Sperm whale \c\.............            1            1            0           56               1              57
Dwarf sperm whale \d\.......            0            0            2            2               2               2
Pygmy sperm whale \d\.......            0            0            2            2               2               2
Cuvier's beaked whale \d\...            0            0            0            3               0               3
Blainville's beaked whale               0            0            0            4               0               4
 \d\........................
Gervais' beaked whale \d\...            0            0            0            4               0               4
Sowerby's beaked whale \d\..            0            0            0            4               0               4
True's beaked whale \d\.....            0            0            0            3               0               3
Northern bottlenose whale               0            0            0            4               0               4
 \d\........................
Atlantic spotted dolphin \d\            1            1            0          169               1             170
Atlantic white-sided dolphin            1            3            0         1713               1            1716
Bottlenose dolphin, offshore            1            2            0         2065               1            2067
Clymene dolphin \d\.........            0            0            0          167               0             167
Common dolphin..............            1           19            0        26553               1           26572
Long-finned pilot whale.....            1            1            0          216               1             217
Short-finned pilot whale....            1            1            0           20               1              21
Risso's dolphin.............            1            1            0          456               1             457
False killer whale..........            0            0            0           12               0              12
Fraser's dolphin \d\........            0            0            0          192               0             192
Killer whale \d\............            0            0            0           10               0              10
Melon-headed whale \d\......            0            0            0          109               0             109
Pantropical Spotted dolphin             0            0            0           60               0              60
 \d\........................
Pygmy killer whale \d\......            0            0            0            5               0               5
Rough-toothed dolphin \d\...            0            0            0           14               0              14
Spinner dolphin \d\.........            0            0            0           51               0              51
Striped dolphin \d\.........            0            0            0           64               0              64
White-beaked dolphin \d\....            0            0            0           44               0              44
Harbor porpoise.............           56          217           11          902              67            1119
Gray seal...................            8          146            1         1391               9            1537
Harbor seal.................           17          328            1          973              18            1301
Harp seal...................            8          146            1         1867               9            2013
Hooded seal \d\.............            0            0            0            1               0               1
----------------------------------------------------------------------------------------------------------------
\a\ The maximum values is the sum of the Year 1 takes by harassment for UXO/MECs and the takes by harassment for
  all year 3 activities (foundation installation and HRG). Values in bold are the result of the addition of UXO/
  MEC takes to year 3 takes.
\b\ Using the draft 2023 stock assessment report (SAR) at time of publication as it is represents the best
  available science (89 FR 5495, January 29, 2024).
\c\ Listed as Endangered under the ESA.
\d\ Rare species in the project area. The number of Level A harassment and Level B harassment takes calculated
  for rare species is based on the mean group size assuming a 3 year construction schedule (all rare species)
  and encounters during HRG surveys for white-beaked dolphin, killer whale, and false killer whale.


[[Page 52274]]


 Table 35--Maximum Number of Takes (Level A Harassment and Level B Harassment) That May Be Authorized in Any One Year of the Project and the Percent of
                                    Stock That Would be Taken Based on the Maximum Annual Take That May Be Authorized
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                        Percent of stock
                                                                      NMFS stock     Maximum annual    Maximum annual   Maximum annual   taken based on
                              Species                                abundance \b\       Level A           Level B           take        maximum annual
                                                                                       harassment        harassment                         take \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \c\....................................             340                 0                60              60             17.65
Blue whale \c\ \d\................................................             402                 1                 2               3              0.75
Fin whale \c\.....................................................            6802                21               201             222              3.26
Humpback whale....................................................            1396                18               134             152             10.89
Minke whale.......................................................           21968                90               508             598              2.72
Sei whale \c\.....................................................            6292                 4                31              35              0.56
Sperm whale \c\...................................................            5895                 1                57              58              0.98
Dwarf sperm whale \d\.............................................            9474                 2                 2               4              0.04
Pygmy sperm whale \d\.............................................            9474                 2                 2               4              0.04
Cuvier's beaked whale \d\.........................................            4670                 0                 3               3              0.06
Blainville's beaked whale \d\.....................................            2936                 0                 4               4              0.14
Gervais' beaked whale \d\.........................................            8595                 0                 4               4              0.05
Sowerby's beaked whale \d\........................................             492                 0                 4               4              0.81
True's beaked whale \d\...........................................            4480                 0                 3               3              0.07
Northern bottlenose whale \d\.....................................             UNK                 0                 4               4               UNK
Atlantic spotted dolphin \d\......................................           31506                 1               170             171              0.54
Atlantic white-sided dolphin......................................           93233                 1              1716            1717              1.84
Bottlenose dolphin, offshore......................................           64587                 1              2067            2068              3.20
Clymene dolphin \d\...............................................           21778                 0               167             167              0.77
Common dolphin....................................................           93100                 1             26572           26573             28.54
Long-finned pilot whale...........................................           39215                 1               217             218              0.56
Short-finned pilot whale..........................................           18726                 1                21              22              0.12
Risso's dolphin...................................................           44067                 1               457             458              1.04
False killer whale................................................            1298                 0                12              12              0.92
Fraser's dolphin \d\..............................................             UNK                 0               192             192               UNK
Killer whale \d\..................................................             UNK                 0                10              10               UNK
Melon-headed whale \d\............................................             UNK                 0               109             109               UNK
Pantropical Spotted dolphin \d\...................................            2757                 0                60              60              2.18
Pygmy killer whale \d\............................................             UNK                 0                 5               5               UNK
Rough-toothed dolphin \d\.........................................             UNK                 0                14              14               UNK
Spinner dolphin \d\...............................................            3181                 0                51              51              1.60
Striped dolphin \d\...............................................           48274                 0                64              64              0.13
White-beaked dolphin \d\..........................................          536016                 0                44              44              0.01
Harbor porpoise...................................................           85765                67              1119            1186              1.38
Gray seal.........................................................           27911                 9              1537            1546              5.54
Harbor seal.......................................................           61336                18              1301            1319              2.15
Harp seal.........................................................         7600000                 9              2013            2022              0.03
Hooded seal \d\...................................................             UNK                 0                 1               1               UNK
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Note: Year 3 of the project is expected to have the greatest amount of Level B harassment take possible. However, the years where UXO/MEC detonation
  could occur (currently scheduled for only years 1 and 2) have a higher amount of take by Level A harassment for some species; as the UXO/MEC
  detonation may shift, the Year 1 UXO/MEC takes were added to the foundation installation and HRG year 3 takes. Values in bold are a result of UXO/MEC
  takes by harassment being added to the Year 3 take amounts.
\a\ The values in this column represent the assumption that each take that may be authorized would occur to a unique individual. Given the scope of work
  proposed, this is highly unlikely for species common to the project area (e.g., North Atlantic right whales, humpback whales) such that the actual
  percentage of the population taken is less than the percentages identified here.
\b\ Using the draft 2023 stock assessment report (SAR) at time of publication as it is represents the best available science (89 FR 5495, January 29,
  2024).
\c\ Listed as Endangered under the ESA.
\d\ Rare species in the project area. The number of Level A harassment and Level B harassment takes calculated for rare species is based on the mean
  group size assuming a 3-year construction schedule (all rare species) and encounters during HRG surveys for white-beaked dolphin, killer whale, and
  false killer whale.

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 and has changed the minimum visibility zone for mysticetes and 
shutdown zone for North Atlantic right whales. These changes are 
described in detail in the sections below. Besides these changes, the 
required measures remain the same as those described in the proposed 
rule. However, NMFS has also re-organized and simplified the section to 
avoid full duplication of the specific requirements that are fully 
described in the regulatory text.
    In order to promulgate a rulemaking under section 101(a)(5)(A) of 
the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable adverse impact on the species or stock and its habitat, 
paying particular attention to 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 ITAs to include 
information about the availability and feasibility (e.g., economic and 
technological) of equipment, methods, and manner of

[[Page 52275]]

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

Training and Coordination

    NMFS requires all Avangrid employees and contractors conducting 
activities on the water, including but not limited to, all vessel 
captains and crew to be trained in marine mammal detection and 
identification, communication protocols, and all required measures to 
minimize impacts on marine mammals and support Avangrid'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, Avangrid 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 shutdown by the Lead PSO. Any 
disagreement between the Lead PSO and the Project personnel must only 
be discussed after delay or shutdown has occurred. In particular, all 
captains and vessel crew must be trained in marine mammal detection and 
vessel strike avoidance measures to ensure marine mammals are not 
struck by any project or project-related vessel.
    Prior to the start of in-water construction activities, vessel 
operators and crews will 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 will include 
information and resources available regarding applicable Federal laws 
and regulations for protected species. Avangrid will provide 
documentation of training to NMFS. Since the proposed rule, NMFS has 
added requirements for a description of the training program to be 
provided to NMFS at least 60 days prior to the initial training before 
in-water activities begin and for confirmation of all required training 
to be documented on a training course log sheet and reported to NMFS 
Office of Protected Resources prior to initiating project activities. 
These measures were added in response to several commenters' concerns 
regarding strengthening mitigation and monitoring measures.

North Atlantic Right Whale Awareness Monitoring

    Avangrid must use available sources of information on North 
Atlantic right whale presence, including daily monitoring of the Right 
Whale Sightings Advisory System, monitoring of Coast Guard VHF Channel 
16 throughout each day to receive notifications of any sightings, and 
information associated with any regulatory management actions (e.g., 
establishment of a zone identifying the need to reduce vessel speeds). 
Maintaining daily awareness and coordination affords increased 
protection of North Atlantic right whales by understanding North 
Atlantic right whale presence in the area through ongoing visual and 
PAM efforts and opportunities (outside of Avangrid's efforts), and 
allows for planning of construction activities, when practicable, to 
minimize potential impacts on North Atlantic right whales. The vessel 
strike avoidance measures apply to all vessels associated with the 
Project within U.S. waters and on the high seas.

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, vessel 
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 further avoid vessel 
strikes to the extent practicable. While many of

[[Page 52276]]

these measures are proactive, intended to avoid the heavy use of 
vessels during times when marine mammals of particular concern may be 
in the area, several are reactive and occur when a marine mammal is 
sighted by project personnel. The mitigation requirements are described 
generally here and in detail in the regulatory text at the end of this 
final rule (50 CFR 217.324(b)). Avangrid will be required to comply 
with these measures, except under circumstances when doing so would 
create an imminent and serious threat to a person or vessel, or to the 
extent that a vessel is unable to maneuver and, because of the 
inability to maneuver, the vessel cannot comply.
    While underway, Avangrid is required to monitor for and maintain a 
safe distance from marine mammals, and operate vessels in a manner that 
reduces the potential for vessel strike. Regardless of the vessel's 
size, all vessel operators, crews, and dedicated visual observers 
(i.e., PSO or trained crew member) must maintain a vigilant watch for 
all marine mammals and slow down, stop their vessel, or alter course as 
appropriate to avoid striking any marine mammal. The dedicated visual 
observer, equipped with suitable monitoring technology (e.g., 
binoculars, night vision devices), must be located at an appropriate 
vantage point for ensuring vessels are maintaining required vessel 
separation distances from marine mammals (e.g., 500 m from North 
Atlantic right whales).
    All project vessels, regardless of size, must maintain the 
following minimum separation zones: 500 m from North Atlantic right 
whales; 100 m from sperm whales and non-North Atlantic right whale 
baleen whales; and 50 m from all delphinid cetaceans and pinnipeds (an 
exception is made for those species that approach the vessel (i.e., 
bow-riding dolphins)). If any of these species are sighted within their 
respective minimum separation zone, the underway vessel must shift its 
engine to neutral and the engines must not be engaged until the 
animal(s) have been observed to be outside of the vessel's path and 
beyond the respective minimum separation zone. If a North Atlantic 
right whale is observed at any distance by any project personnel or 
acoustically detected, project vessels must reduce speeds to 10 knots 
(kn). Additionally, in the event that any project-related vessel, 
regardless of size, observes any large whale (other than a North 
Atlantic right whale) within 500 m of an underway vessel, the vessel is 
required to shift engines into neutral. The vessel shall remain in 
neutral until the North Atlantic right whale has moved beyond 500 m and 
the 10 kn speed restriction will remain in effect as outlined in 50 CFR 
217.314(b). 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, Avangrid is required to monitor the transit 
corridor in real-time with PAM prior to and during transits. To 
maintain awareness of North Atlantic right whale presence in the 
Project Area, vessel operators, crew members, and the marine mammal 
monitoring team will monitor U.S. Coast Guard VHF Channel 16, 
WhaleAlert, the Right Whale Sighting Advisory System (RWSAS), and the 
PAM system. Any North Atlantic right whale or large whale detection 
will be immediately communicated to PSOs, PAM operators, and all vessel 
captains.
    All vessels will be equipped with an AIS and Avangrid must report 
all MMSI numbers to NMFS Office of Protected Resources prior to 
initiating in-water activities. The requirement for vessels to be 
equipped with AIS has been added since the proposed rule to increase 
the accountability of project vessels. Avangrid will 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).
    Given the inherent low probability of vessel strike, combined with 
the vessel strike avoidance measures included herein, NMFS considers 
the potential for vessel strike to be unlikely and would not allow take 
from this activity under this final rule.

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 temporal restrictions 
required here are built around the protection of North Atlantic right 
whales. Based upon the best scientific information available (Roberts 
et al., 2023), the highest densities of North Atlantic right whales in 
the Project Area are expected during the months of January through 
April, with an increase in density starting in December and continuing 
through May. However, North Atlantic right whales may be present in the 
Project Area throughout the year.
    NMFS is requiring seasonal work restrictions to minimize noise 
exposure to North Atlantic right whales incidental to certain specified 
activities to the extent practicable. These seasonal work restrictions 
are expected to greatly reduce the number of takes of North Atlantic 
right whales that otherwise may have occurred without seasonal 
restrictions. These seasonal restrictions also afford protection to 
other marine mammals that are known to use the Project Area with 
greater frequency during winter months, including other baleen whales.
    As described previously, no impact pile driving or drilling 
activities may occur January 1 through April 30 (and December 1 through 
May 31 for vibratory pile driving). As described in the proposed rule 
and carried forward in this final rule, Avangrid is to install the 
foundations as quickly as possible and avoid impact pile driving and 
drilling in December to the maximum extent practicable; however, impact 
pile driving and drilling may occur in December if it is unavoidable 
and only upon approval from NMFS. Avangrid did not propose to conduct 
vibratory pile driving in May or December and doing so is not 
considered in the take estimates. As such, this final rule establishes 
a seasonal restriction of no vibratory pile driving from December 1 
through May 31.
    No more than two foundation monopiles or four pin piles for jacket 
foundations (or bottom-frame foundations) would be installed per day. 
Monopiles must be no larger than 13 m in diameter and pin piles must be 
no larger than 4 m in diameter. For all monopiles and pin piles, the 
minimum amount of hammer energy necessary to effectively and safely 
install and maintain the integrity of the piles must

[[Page 52277]]

be used. Hammer energies must not exceed 6,000 kJ for monopile 
installation or 3,500 kJ for pin pile installation. No more than one 
pile may be installed at a given time (i.e., concurrent/simultaneous 
pile driving and drilling may not occur).
    Pile driving and drilling (i.e., foundation installation) must not 
be initiated earlier than 1 hour after civil sunrise or later than 1.5 
hours prior to civil sunset. Generally, foundation installation may 
continue after dark when the installation of the same pile began during 
daylight (1.5 hours before civil sunset), when clearance zones were 
fully visible for at least 30 minutes and must proceed for human safety 
or installation feasibility reasons. The exception to these limitations 
would be if Avangrid submits, and NMFS approves, an Alternative 
Monitoring Plan as part of the Foundation Installation and Marine 
Mammal Monitoring Plan (i.e., Nighttime Monitoring Plan) that reliably 
demonstrates the efficacy of detecting marine mammals at night with its 
proposed devices. Nighttime hours are defined as the hours between 1.5 
hours prior to civil sunset until 1 hour after civil sunrise. 
Foundation installation will not be initiated when the minimum 
visibility zones cannot be fully visually monitored, as determined by 
the lead PSO on duty.
    As with foundation installation, NMFS is similarly restricting UXO/
MEC detonations December through May, annually; however, Avangrid may 
detonate a UXO/MEC in December or May with NMFS' advanced approval on a 
case-by-case basis. NMFS is requiring this seasonal work restriction to 
minimize the North Atlantic right whales risk of exposure to noise 
incidental to foundation installation and UXO/MEC detonation. These 
seasonal work restrictions are expected to greatly reduce the number of 
takes of North Atlantic right whales that would have otherwise occurred 
should all activities be conducted during these months. 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. No more than one UXO/MEC may be 
detonated per 24-hour period. Moreover, detonations may only occur 
during daylight hours.
    Given the very small harassment zones resulting from HRG surveys 
and that the best available science indicates that any harassment from 
HRG surveys, should a marine mammal be exposed, would manifest as minor 
behavioral harassment only (e.g., potentially some avoidance of the 
vessel). NMFS is not requiring any seasonal and 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 
rule.

Noise Abatement Systems

    Avangrid is required to employ noise abatement systems (NASs) 
during all foundation installation (i.e., impact pile driving, 
vibratory pile driving, and drilling) activities and UXO/MEC 
detonations to reduce the sound pressure levels that are transmitted 
through the water to reduce ranges to acoustic thresholds and minimize 
any acoustic impacts resulting from these activities. Avangrid is 
required to use at least two NASs to ensure that measured sound levels 
do not exceed the levels modeled for a 10-dB sound level reduction for 
foundation installation, which is likely to include a double big bubble 
curtain or a double big bubble curtain combined with other NAS (e.g., 
hydro-sound damper, or an AdBm Helmholz resonator), as well as the 
adjustment of operational protocols to minimize noise levels. As part 
of adaptive management, should the research and development phase of 
newer systems demonstrate effectiveness, Avangrid 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 NASs 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 NASs 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 NASs 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 the Sound Field Verification section below 
and 50 CFR part 217).
    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 (e.g., Hydro Sound Dampers (HSDs)), can be 
effective within their targeted frequency ranges (e.g., 100-800 Hz), 
and when used in conjunction with a bubble curtain appear to create the 
greatest attenuation. The literature presents a wide array of observed 
attenuation results for bubble curtains. The variability in attenuation 
levels is the result of variation in design as well as differences in 
site conditions and difficulty in properly installing and operating in-
water attenuation devices. 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), Avangrid is required to maintain numerous 
operational performance standards. These standards are defined in the 
regulatory text at the end of this rule, and include, but are not 
limited to, construction contractors must train personnel in the proper 
balancing of airflow to the bubble ring and Avangrid must submit a 
performance test and maintenance

[[Page 52278]]

report to NMFS within 72 hours following the performance test. 
Corrections to the attenuation device to meet regulatory requirements 
must occur prior to use during foundation installation activities. In 
addition, a full maintenance check (e.g., manually clearing holes) must 
occur prior to each pile being installed. If Avangrid uses a noise 
mitigation device in addition to a double big bubble curtain, similar 
quality control measures are required. Should the research and 
development phase of newer systems demonstrate effectiveness, as part 
of adaptive management, Avangrid may submit data on the effectiveness 
of these systems and request approval from NMFS to use them during 
foundation installation activities.
    Avangrid is required to submit an SFV plan to NMFS for approval at 
least 180 days prior to installing foundations. They are also required 
to submit interim and final SFV data results to NMFS and make 
corrections to the NASs in the case that any SFV measurements 
demonstrate noise levels are above those modeled assuming 10 dB. These 
frequent and immediate reports allow NMFS to better understand the 
sound fields to which marine mammals are being exposed and require 
immediate corrective action should they be misaligned with anticipated 
noise levels within our analysis.
    Noise abatement devices are not required during HRG surveys. 
Regarding HRG surveys, NAS cannot practicably be employed around a 
moving survey ship, but Avangrid 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., 
boomers) and turning off equipment when not actively surveying. 
Overall, minimizing the amount and duration of noise in the ocean from 
any of the Project's activities through use of all means necessary 
(e.g., noise abatement, turning off power) will effect the least 
practicable adverse impact on marine mammals.

Clearance and Shutdown Zones

    NMFS requires the establishment of both clearance and, where 
technically feasible, shutdown zones during project activities that 
have the potential to result in harassment of marine mammals. The 
purpose of ``clearance'' of a particular zone is to minimize potential 
instances of auditory injury and more severe behavioral disturbances by 
delaying the commencement of an activity if marine mammals are near the 
activity. The purpose of a shutdown is to prevent a specific acute 
impact, such as auditory injury or severe behavioral disturbance of 
sensitive species, by halting the activity.
    All relevant clearance and shutdown zones during project activities 
would be monitored by NMFS-approved PSOs and PAM operators as described 
in the regulatory text at the end of this rule. At least one PAM 
operator must review data from at least 24 hours prior to foundation 
installation and UXO/MEC detonations and must actively monitor 
hydrophones for 60 minutes prior to commencement of these activities. 
Any North Atlantic right whale sighting at any distance by foundation 
installation PSOs, or acoustically detected within the PAM monitoring 
zone (12 km), triggers a delay to commencing pile driving and shutdown. 
Any large whale sighted by a PSO or acoustically detected by a PAM 
operator that cannot be identified as a non-North Atlantic right whale 
must be treated as if it were a North Atlantic right whale.
    Prior to the start of certain specified activities (i.e., 
foundation installation, UXO/MEC detonation, and HRG surveys), Avangrid 
must ensure designated areas (i.e., clearance zones as provided in 
tables 36 and 37) are clear of marine mammals prior to commencing 
activities to minimize the potential for and degree of harassment. For 
foundation installation and UXO/MEC detonations, PSOs must visually 
monitor clearance zones for marine mammals for a minimum of 60 minutes 
prior to the activity. During this period, the clearance zones will be 
monitored by both PSOs and a PAM operator. Prior to the starting these 
activities, Avangrid will ensure the area is clear of marine mammals, 
per the clearance zones in tables 36 and 37, to minimize the potential 
for, and the degree of, harassment. All clearance zones must be 
confirmed to be free of marine mammals for 30 minutes immediately prior 
to starting a pile driving (including soft-start), drilling, or UXO/MEC 
detonation. If a marine mammal is observed within a clearance zone 
during the pre-start clearance period, the activity will be delayed and 
may not begin until the animal(s) has been observed exiting its 
respective zone, or until an additional time period has elapsed with no 
further sightings (i.e., 15 minutes for small odontocetes and pinnipeds 
and 30 minutes for all other species). In addition, foundation 
installation and UXO/MEC detonation will be delayed upon a confirmed 
PAM detection of a North Atlantic right whale if the PAM detection is 
confirmed to have been located within the North Atlantic right whale 
PAM Clearance zone. PSO and PAM must continue throughout the duration 
of foundation installation and UXO/MEC detonation and for 30 minutes 
post-completion of the activity. 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. Because UXO/MEC detonations are instantaneous, no 
shutdown is possible; therefore, there are clearance zones but no 
shutdown zones for UXO/MEC detonations (table 37).
    Clearance and shutdown zones have been developed in consideration 
of modeled distances to relevant PTS thresholds with respect to 
minimizing the potential for take by Level A harassment. The clearance 
and shutdown zones for North Atlantic right whales during monopile and 
jacket foundation installation are visual observations at any distance 
by PSOs or any acoustic detection within the PAM monitoring zone (12 
km). The visual and acoustic clearance zones for large whales other 
than North Atlantic right whales are 3,300 m (monopile) and 4,900 m 
(jacket), which corresponds to the largest modeled exposure range 
(ER95) distances to Level A harassment thresholds 
(SEL and peak) under all scenarios for all whales, plus 20 percent, 
then rounded up for PSO clarity (table 36). The visual and acoustic 
shutdown zones for large whales other than North Atlantic right whales 
are 2,700 m (monopile) and 4,100 m (jacket) for all other large whales. 
These distances are also larger than the largest Level A harassment 
modeled exposure range (ER95) for impact pile 
driving and impact+vibratory pile driving. The clearance and shutdown 
zones for other species, which are expected to reduce the likelihood 
and amount of Level A harassment and the severity of Level B 
harassment, are shown in table 36 and will effect the least practicable 
adverse impact (LPAI). For North Atlantic right whales, there is an 
additional requirement that the clearance zone may only be declared 
clear if no confirmed North Atlantic right whale acoustic detections 
(in addition to visual) have occurred during the 60-minute monitoring 
period.
    Once an activity begins, any marine mammal entering their 
respective shutdown zone would trigger the activity to cease. In the 
case of foundation installation, the shutdown requirement may be waived 
if it is not practicable to shutdown the equipment due to imminent risk 
of injury or loss of life to an individual, risk of damage to a vessel 
that creates risk of injury or

[[Page 52279]]

loss of life for individuals, or where the lead engineer determines 
there is pile refusal or pile instability. In situations when shutdown 
is called for during impact pile driving, but Avangrid 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. 
Avangrid must document and report to NMFS all cases where the emergency 
exemption is taken.
    After shutdown, foundation installation 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 
foundation installation has been shut down due to the presence of a 
North Atlantic right whale, pile driving must not restart until the 
North Atlantic right whale has neither been visually or acoustically 
detected by PSOs and PAM operators for 30 minutes. Upon re-starting 
pile driving, soft-start protocols must be followed if pile driving has 
ceased for 30 minutes or longer.
    The clearance and shutdown zone sizes vary by species and are shown 
in tables 36 and 37. Avangrid is allowed to request modification to 
these zone sizes pending results of SFV (see the regulatory text at the 
end of this rule). Any changes to zone size would be part of adaptive 
management and would require NMFS' approval. The 12 km PAM monitoring 
zone for North Atlantic right whales has been carried forward from the 
proposed rule into this final rule. The clearance and shutdown zones 
for North Atlantic right whales have been increased to any visual 
distance by foundation installation PSOs and any acoustic detection 
within the 12-km PAM monitoring zone. The increase to these zones also 
increases protections for North Atlantic right whales during impact 
pile driving.
    In addition to the clearance and shutdown zones that would be 
monitored both visually and acoustically, NMFS is requiring Avangrid to 
establish a minimum visibility zone during foundation installation 
activities to ensure both visual and acoustic methods are used in 
tandem to detect marine mammals resulting in maximum detection 
capability. 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 GI injury. The minimum visibility zone for 
foundation installation activities (pile driving and drilling) would 
extend from the location of the pile being driven out to 2.1 km 
(monopiles) and 3.4 km (jacket). This value corresponds to just greater 
than the modeled maximum ER95 distances to the Level 
A harassment threshold for North Atlantic right whales, assuming 10 dB 
of attenuation. The entire minimum visibility zone must be visible for 
a full 60 minutes immediately prior to commencing pile driving and 
drilling. The entire clearance zone must be visible for a full 60 
minutes immediately prior to commencing UXO/MEC detonation.
    For HRG surveys, there are no mitigation measures prescribed for 
sound sources operating at frequencies greater than 180 kHz, as these 
would be expected to fall outside of marine mammal hearing ranges and 
would not result in harassment. However, all HRG survey vessels would 
be subject to the aforementioned vessel strike avoidance measures 
described earlier in this section. Furthermore, due to the frequency 
range and characteristics of some of the sound sources associated with 
lesser impacts, shutdown, clearance, and ramp-up procedures are not 
planned to be conducted during HRG surveys utilizing only non-impulsive 
sources (e.g., other parametric sub-bottom profilers). Shutdown, 
clearance, and ramp-up procedures are planned to be conducted during 
HRG surveys utilizing SBPs and other non-parametric sub-bottom 
profilers (planned survey equipment are in table 31). PAM would not be 
required during HRG surveys. While NMFS agrees that PAM can be an 
important tool for augmenting detection capabilities in certain 
circumstances, its utility in further reducing impacts during HRG 
survey activities is limited.
    Avangrid will be required to implement a 30-minute clearance period 
of the clearance zones (table 36) immediately prior to the commencing 
of the survey, or when there is more than a 30-minute break in survey 
activities and PSOs have not been actively monitoring. If a marine 
mammal is observed within a clearance zone during the clearance period, 
ramp up (described below) may not begin until the animal(s) have been 
observed voluntarily exiting its respective clearance zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and pinnipeds, and 30 minutes for all 
other species). When the clearance process has begun in conditions with 
good visibility, including via the use of night vision equipment (i.e., 
infrared (IR)/thermal camera), and the Lead PSO has determined that the 
clearance zones are clear of marine mammals, survey operations would be 
allowed to commence (i.e., no delay is required) despite periods of 
inclement weather and/or loss of daylight.
    Once the survey has commenced, Avangrid would be required to shut 
down SBPs if a marine mammal enters a respective shutdown zone (table 
36). In cases where the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations would be allowed to 
continue (i.e., no shutdown is required) so long as no marine mammals 
have been detected. The use of SBPs will not be allowed to commence or 
resume until the animal(s) has been confirmed to have left the shutdown 
zone or until a full 15 minutes (for small odontocetes and seals) or 30 
minutes (for all other marine mammals) have elapsed with no further 
sighting. Any large whale sighted by a PSO within 1,000 m of the SBPs 
that cannot be identified as a non-North Atlantic right whale would be 
treated as if it were a North Atlantic right whale for the purposes of 
mitigation implementation.
    Once the survey has commenced, Avangrid would be required to shut 
down SBPs if a marine mammal enters a respective shutdown zone (table 
36). In cases when the shutdown zones become obscured for brief periods 
due to inclement weather, survey operations would be allowed to 
continue (i.e., no shutdown is required) so long as no marine mammals 
have been detected. The use of SBPs will not be allowed to commence or 
resume until the animal(s) has been confirmed to have left the shutdown 
zone or until a full 15 minutes (for small odontocetes and seals) or 30 
minutes (for all other marine

[[Page 52280]]

mammals) have elapsed with no further sighting. Any large whale sighted 
by a PSO within 1,000 m of the SBPs that cannot be identified as a non-
North Atlantic right whale would be treated as if it were a North 
Atlantic right whale.
    If a SBP is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, it would be allowed to 
be activated again without ramp-up only if (1) PSOs have maintained 
constant observation, and (2) no additional detections of any marine 
mammal occurred within the respective shutdown zones. If a SBP was shut 
down for a period longer than 30 minutes, then all clearance and ramp-
up procedures would be required, as previously described.
    For any other in-water construction heavy machinery activities 
(e.g., trenching, cable laying, etc.), if a marine mammal is on a path 
towards and about to enter or comes within 10 m (32.8 ft) of equipment, 
Avangrid 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.

 Table 36--Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones During Foundation Installation
                                                     and HRG
----------------------------------------------------------------------------------------------------------------
                                          Minimum       Visual and        Visual and
                                         visibility      acoustic          acoustic       Acoustic      Vessel
      Activity          Marine mammal     zone (m)    clearance zone    shutdown zone    monitoring   separation
                                            \4\           (m) \5\          (m) \6\        zone (m)     zone (m)
----------------------------------------------------------------------------------------------------------------
Monopile \1\........  North Atlantic          2,100  Any distance visual detection       \7\ 12,000          500
                       right whale.                  from PSOs, any acoustic detection
                                                     within 12-km acoustic monitoring
                                                     zone.
                                                    -----------------------------------
                      Other baleen and                          3,300            2,700                       100
                       sperm.
                      Small whales and                            200              200                        50
                       dolphins.
                      Harbor porpoise.                            250              250                        50
                      Seals...........                            200              200                        50
----------------------------------------------------------------------------------------------------------------
Jacket \2\..........  North Atlantic          3,400  Any distance visual detection       \7\ 12,000          500
                       right whale.                  from PSOs, any acoustic detection
                                                     within 12-km acoustic monitoring
                                                     zone.
                                                    -----------------------------------
                      Other baleen and                          4,900            4,100                       100
                       sperm.
                      Small whales and                            200              200                        50
                       dolphins.
                      Harbor porpoise.                            250              250                        50
                      Seals...........                          1,000              800                        50
----------------------------------------------------------------------------------------------------------------
HRG \3\.............  North Atlantic            500               500              500          N/A          500
                       right whale.
                      All other ESA...                            500              100                       100
                      All other non-                              100              100                        50
                       ESA.
----------------------------------------------------------------------------------------------------------------
\1\ The zones for monopiles apply to all impact pile driving, vibratory pile driving, and drilling activities
  and are based on the largest distances to Level A harassment ER95% thresholds across the monopile and hammer
  sizes (i.e., 12m, 13m, 5,000 kJ, 6,000 kJ).The exact size may be modified through adaptive management should
  SFV demonstrate noise levels are lower or higher than expected. New zone sizes will be based on the definition
  provided in footnotes 5 and 6.
\2\ The zones for the 4-m jacket pin piles apply to impact pile driving, vibratory pile driving, and drilling
  activities and are based on the largest distances to Level A harassment ER95% thresholds. The exact zone size
  may be modified through adaptive management should SFV demonstrate noise levels are lower or higher than
  expected. New zone sizes will be based on the definition provided in footnotes 5 and 6.
\3\ HRG zones are limited to visual clearance and shutdown zones as PAM is not required. Clearance and shutdown
  zones apply only when operating sound sources covered under the specified activities that may result in take
  (i.e., SBPs).
\4\ The minimum visibility zone is based on the largest distance to the Level A harassment ER95% for low-
  frequency cetaceans, not including fin whales, rounded up for PSO clarity. The entire minimum visibility zone
  must be visible for a full 60 minutes immediately prior to commencing pile driving and drilling.
\5\ The clearance zone for ``other baleen and sperm'' is based on the largest distance to the Level A harassment
  ER95% of the species group plus a 20 percent increase and then rounded up for PSO clarity. The clearance zones
  for the other species groups, not including North Atlantic right whale, is set as a minimum of 200 m for those
  species whose distance to Level A harassment was less than 200 m so as to place the clearance zone outside the
  NAS. For harbor porpoise, Avangrid proposed, and NMFS accepted, a zone of 250 m though the distance to Level A
  harassment ER95% was modeled at less than 200 m, therefore, no additional increase is warranted for the
  clearance zone. For seals, as its distance to Level A harassment was more than 200 m, the clearance zone was
  set as the largest distance to the Level A harassment ER95% of the species group plus a 20 percent increase
  and then rounded up for PSO clarity.
\6\ The shutdown zone for ``other baleen and sperm'' is based on the largest distance to the Level A harassment
  ER95% then rounded up for PSO clarity. The shutdown zones for the other species groups, not including North
  Atlantic right whale, is set as a minimum of 200 m for those species whose distance to Level A harassment was
  less than 200 m so as to place the shutdown zone outside the NAS. For harbor porpoise, Avangrid proposed, and
  NMFS accepted, a zone of 250 m though the distance to Level A harassment ER95% was modeled at less than 200 m.
  For seals during jacket foundation installation, the distance to Level A harassment was more than 200 m (790
  m) so the shutdown zone was rounded up to 800 m.
\7\ The PAM system must be designed to detect all marine mammals to the maximum extent practicable, maximize
  baleen whale detections, and must be capable of detecting North Atlantic right whales at 12 km. NMFS
  recognizes that other marine mammals (e.g., harbor porpoise) may not be detected at 12 km.


   Table 37--Clearance, Level A Harassment, and Level B Harassment Zones During UXO/MEC Detonations, by Charge
                                 Weight and Assuming 10 dB of Sound Attenuation
----------------------------------------------------------------------------------------------------------------
                                                  Low-frequency    Mid-frequency    High-frequency      Phocid
             UXO/MEC charge weights                 cetaceans        cetaceans         cetaceans      pinnipeds
----------------------------------------------------------------------------------------------------------------
E4 (2.3 kg):
    Level A harassment (m).....................              552               50             1,820          182
    Level B harassment (m).....................              282              453             6,160        1,470
    Clearance Zone (m) \a\ \b\ \c\.............          * 2,500              500             2,500        1,000
E6 (9.1 kg):
    Level A harassment (m).....................              982               75             2,590          357
    Level B harassment (m).....................            4,680              773             8,000        2,350
    Clearance Zone (m) \a\ \b\ \c\.............          * 4,000              600             4,000        1,500
E8 (45.5 kg):
    Level A harassment (m).....................            1,730              156             3,900          690
    Level B harassment (m).....................            7,490            1,240            10,300        3,820

[[Page 52281]]

 
    Clearance Zone (m) \a\ \b\ \c\.............          * 6,000            1,000             6,000        3,000
E10 (227 kg):
    Level A harassment (m).....................            2,970              337             5,400        1,220
    Level B harassment (m).....................           10,500            2,120            12,900        5,980
    Clearance Zone (m) \a\ \b\ \c\.............          * 9,000            1,500             9,000        4,000
E12 (454 kg):
    Level A harassment (m).....................            3,780              461             6,200        1,600
    Level B harassment (m).....................           11,900            2,550            14,100        7,020
    Clearance Zone (m) \a\ \b\ \c\.............         * 10,000            2,000            10,000        5,000
----------------------------------------------------------------------------------------------------------------
* The clearance zone size for the North Atlantic right whale is ``any distance''. Detonation must not occur if a
  North Atlantic right whale is visually or acoustically detected at any distance from the detonation site.
\a\ The clearance zones, which are visually and acoustically monitored, presented here for the Level B
  harassment thresholds were derived based on an approximate proportion of the size of the Level B harassment
  (TTS) isopleth. The clearance zone sizes are contingent on Avangrid being able to demonstrate that they can
  identify charge weights in the field; if they cannot identify the charge weight sizes in the field then
  Avangrid would need to assume the E12 charge weight size for all detonations and must implement the E12
  clearance zone. No minimum visibility zone is required for UXO/MEC detonation as the entire clearance zone
  must be visually clear.
\b\ Some of the zones have been rounded for PSO clarity.
\c\ The exact zone sizes may be modified through adaptive management should SFV demonstrate noise levels are
  lower or higher than expected.

    NMFS also notes that for any UXO/MECs that require removal, 
Avangrid is required to implement the ALARP process. This process would 
require Avangrid to undertake ``lift-and-shift'' (i.e., physical 
removal) and then lead up to in situ disposal, which could include low-
order (deflagration) to high-order (detonation) methods of removal. 
Another potential 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.

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. Typically, NMFS 
requires a soft-start procedure of the applicant performing four to six 
strikes per minute at 10 to 20 percent of the maximum hammer energy, 
for a minimum of 20 minutes. 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 Avangrid, in consultation 
with NMFS, considering final design details including site-specific 
soil properties and other considerations. A general soft-start 
requirement for impact pile driving is incorporated into the 
regulations. HRG survey operators are required to ramp-up sources when 
the acoustic sources are used unless the equipment operates on a binary 
on/off switch. The ramp-up would involve starting from the smallest 
setting and gradually increasing to the operating level over a period 
of approximately 30 minutes.
    Soft-start and ramp-up will be required at the beginning of each 
day's activity and at any time following a cessation of activity of 30 
minutes or longer. Prior to soft-start or ramp-up beginning, the 
operator must receive confirmation from the PSO that the clearance zone 
is clear of any marine mammals.

Fishery Monitoring Surveys

    While the likelihood of Avangrid's fishery monitoring surveys 
impacting marine mammals is minimal, NMFS requires Avangrid 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 rule.
    Based on our evaluation of the mitigation measures, as well as 
other measures considered by NMFS, NMFS has determined that these 
measures will provide the means of affecting the least practicable 
adverse impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

    As noted in the Changes from the Proposed to Final Rule section, we 
have added, modified, or clarified a number of monitoring and reporting 
measures since the proposed rule. These changes are described in detail 
below. Since the proposed rule, we have increased the number of 
required active PSOs per platform (i.e., foundation installation 
vessel, dedicated PSO vessels) during foundation installation 
activities from two to three PSOs. This requirement will increase 
monitoring effort to promote more effective detection of marine mammals 
during foundation installation activities. In addition, we have added 
specific requirements for SFV monitoring.
    In order to promulgate a rulemaking for an activity, section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA 
implementing regulations at 50 CFR 216.104(a)(13) indicate that 
requests for authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS

[[Page 52282]]

should contribute to improved understanding of one or more of the 
following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (i.e., individual or cumulative, acute 
or chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (i.e., behavioral or 
physiological) to acoustic stressors (i.e., acute, chronic, or 
cumulative), other stressors, or cumulative impacts from multiple 
stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
     Mitigation and monitoring effectiveness.
    Separately, monitoring is also regularly used to support mitigation 
implementation (i.e., 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, drilling, UXO/MEC detonations, and HRG 
surveys. PAM would be also conducted during impact pile driving, 
vibratory pile driving, drilling, 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 foundation installation locations (i.e., location 
of impact pile driving, vibratory pile driving, and drilling), 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

    Avangrid 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, drilling, 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 Avangrid to conduct PAM by PAM operators 
during impact pile driving, vibratory pile driving, drilling, UXO/MEC 
detonation, and vessel transit.
    The inclusion of PAM, which would be conducted by NMFS-approved PAM 
operators, following 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. These two monitoring 
methods are well understood to provide best results when combined 
together (e.g., Barlow and Taylor, 2005; Clark et al., 2010; Gerrodette 
et al., 2011; Van Parijs et al., 2021). Acoustic monitoring, in 
addition to visual monitoring, increases the likelihood of detecting 
marine mammals within the shutdown and clearance zones of project 
activities, which when applied in combination of required shutdowns 
helps to further reduce the risk of marine mammals being exposed to 
sound levels that could otherwise result in acoustic injury or more 
intense behavioral harassment.
    The exact configuration and number of PAM systems depends on the 
size of the zone(s) being monitored, the amount of noise expected in 
the area, and the characteristics of the signals being monitored. More 
closely-spaced hydrophones would allow for more directionality and 
range to the vocalizing marine mammals. Larger baleen cetacean species 
(i.e., mysticetes), which produce loud and lower-frequency 
vocalizations, may be able to be heard with fewer hydrophones spaced at 
greater distances. However, smaller cetaceans (e.g., mid-frequency 
delphinids; odontocetes) may necessitate more hydrophones and to be 
spaced closer together given the shorter range of the shorter, mid-
frequency acoustic signals (e.g., whistles and echolocation clicks). As 
there are no ``perfect fit'' single-optimal-array configurations, these 
set-ups would need to be considered on a case-by-case basis during the 
PAM Plan review.
    NMFS does not formally administer any PSO or PAM operator training 
programs or endorse specific providers but will approve PSOs and PAM 
operators that have successfully completed courses that meet the 
curriculum and training requirements referenced below and further 
specified in the regulatory text at the end of this rule. PSOs can act 
as PAM operators or visual PSOs (but not simultaneously) as long as 
they demonstrate that their training and experience are sufficient to 
perform each task.
    NMFS will provide PSO and PAM operator approvals 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 rule.
    Conditionally-approved PSOs and PAM operators must be paired with 
an unconditionally-approved PSO (or PAM operator, as appropriate) to 
ensure that the quality of marine mammal observations and data 
recording is kept consistent. Additionally, activities requiring PSO 
and/or PAM operator monitoring must have a lead on duty. The visual PSO 
field team, in conjunction with the PAM team, (i.e., together, the 
marine mammal

[[Page 52283]]

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. Avangrid 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 Avangrid at least 30 days prior to the start of the 
Project. Should Avangrid require additional PSOs or PAM operators 
throughout the Project, Avangrid 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.
    A minimum number of PSOs would be required to actively observe for 
the presence of marine mammals during certain project activities, 
generally speaking, with more PSOs being 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 detonations. The types of equipment 
required (e.g., big eyes on the pile driving vessel) are also designed 
to increase marine mammal detection capabilities. Specifics on these 
types of requirements can be found in the regulations at the end of 
this rule.
    At least three PSOs must be on duty at a time on the foundation 
installation vessel/platform and UXO/MEC monitoring platform. A minimum 
of three PSOs must be active on a dedicated PSO vessel. If a dedicated 
PSO vessel is selected, the vessel must be located at the best vantage 
point to observe and document marine mammal sightings in proximity to 
the clearance and, if applicable, shutdown zones.
    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.
    As part of their 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 
(e.g., numbers of animals and their behavior), 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 rule.
    Avangrid is required to submit a Foundation Installation 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, as 
described in the regulatory text at the end of this rule. NMFS must 
approve the plan prior to foundation installation activities 
commencing. Specific details on NMFS' PSO or PAM operator 
qualifications and requirements can be found in 50 CFR part 217, 
subpart GG, set out at the end of this rule.

Sound Field Verification

    Previously in the proposed rule, Avangrid had to conduct SFV 
measurements during all UXO/MEC detonations, and all pile driving and 
drilling activities associated with the installation of, at minimum, 
the first three monopile foundations. SFV measurements must continue 
until at least three consecutive piles demonstrate distances to 
thresholds that are at or below those modeled assuming 10 dB of 
attenuation. Subsequent SFV measurements are also required should 
larger piles be installed or additional piles be driven that are 
anticipated to produce longer distances to harassment isopleths than 
those previously measured (e.g., higher hammer energy, greater number 
of strikes, etc.).
    For the final rule, NMFS has expanded this requirement for SFV 
during foundation installation to align with the BiOp. At minimum, 
Thorough SFV must be conducted in: the first construction year for the 
first three monopiles installed with only an impact hammer; the first 
three monopiles installed with a vibratory hammer followed by an impact 
hammer; the first two jacket foundations (all piles) installed; the 
first foundation (regardless of type) where drilling (i.e., relief 
drilling) is used; all monopiles and the first jacket foundation (all 
piles) installed in December (winter sound speed profile); and, the 
first foundation for any foundation scenarios that were modeled for the 
exposure analysis (e.g., rated hammer energy, number of strikes, 
representative location) that does not fall into one of the previously 
listed categories (e.g., if the first two jacket foundation are 
installed with an impact hammer only, Thorough SFV would be required 
for the first jacket foundation installed with vibratory and impact 
pile driving). Without exception, Thorough SFV is required for all UXO/
MEC detonations.
    After the first construction year, if there are no changes to the 
pile driving equipment (i.e., same hammer, same Noise Attenuation 
System)--the first monopile and first jacket foundation (all piles) 
must have Thorough SFV; if changes to the equipment (e.g., different 
hammer, different noise attenuation system)--the Thorough SFV 
requirements from the first construction year apply. Any foundation 
type or technique included in the requirements for the first 
construction year that was not installed until a subsequent 
construction year (e.g., if drilling is not used until year 2 or 3, the 
first foundation where drilling is used must have Thorough SFV). During 
Thorough SFV, installation of the next foundation (of the same type/
foundation method) may not proceed until Avangrid has reviewed the 
initial results from the Thorough SFV and determined that there were no 
exceedances of any distances to the identified thresholds based on 
modeling assuming 10 dB of attenuation.
    If any of the Thorough SFV measurements from any pile indicate that 
the distance to any isopleth of concern for any species is greater than 
those modeled assuming 10 dB of attenuation, Avangrid must notify NMFS 
within 24 hours of reviewing the Thorough SFV measurements and must 
implement the measures described in detail in the regulatory text at 
the end of this final rule for the next pile of the same type/
installation methodology, as applicable.
    Abbreviated SFV monitoring must be performed on all foundation 
installations for which the complete SFV monitoring described above is 
not conducted. In addition, SFV measurements must be conducted upon 
commencement of turbine operations to estimate turbine operational 
source levels, in accordance with a NMFS-approved Foundation 
Installation Pile Driving SFV Plan. The measurements and reporting 
associated with SFV can be found in the regulatory text at the end of 
this rule. The requirements are

[[Page 52284]]

extensive to ensure monitoring is conducted appropriately and the 
reporting frequency is such that Avangrid 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 International 
Organization for Standardization (ISO) 18406, ``Underwater acoustics--
Measurement of radiated underwater sound from percussive pile driving'' 
(2017).

Reporting

    Prior to any construction activities occurring, Avangrid will 
provide a report to NMFS Office of Protected Resources that 
demonstrates that all Avangrid personnel, including the vessel crews, 
vessel captains, PSOs, and PAM operators, have completed all required 
trainings.
    NMFS will require standardized and frequent reporting from Avangrid 
during the life of the regulations and the 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. Avangrid is required to submit weekly, monthly, 
annual, situational, and final reports. The specifics of what we 
require to be reported can be found in the regulatory text at the end 
of this final rule.
    Weekly Report--During foundation installation activities, Avangrid 
would be required to compile and submit weekly marine mammal monitoring 
reports for foundation installation activities to NMFS Office of 
Protected Resources that document the daily start and stop of all pile-
driving and drilling 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 would no longer be required.
    Monthly Report--Avangrid 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, number of UXO/MECs 
detonated, all detections of marine mammals, and any mitigative actions 
taken. Monthly reports would be due on the 15th of the month for the 
previous month. The monthly report would also identify which turbines 
become operational and when, and a map must be provided. Once all 
foundation pile installation is complete, monthly reports would no 
longer be required.
    Annual Reporting--Avangrid 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--Avangrid 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 North Atlantic right whale is observed at any time by PSOs or 
project personnel, the sighting must be immediately reported to NMFS, 
or, if not feasible, as soon as possible and no longer than 24 hours 
after the sighting. If a North Atlantic right whale is acoustically 
detected at any time via a project-related PAM system, the detection 
must be reported as soon as possible and no longer than 24 hours after 
the detection to NMFS via the 24-hour North Atlantic right whale 
Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is 
not necessary when reporting PAM detections via the template.
    If a sighting of a stranded, entangled, injured, or dead marine 
mammal occurs, the sighting would be reported within 24 hours to NMFS 
Office of Protected Resources, the NMFS Greater Atlantic Stranding 
Coordinator for the New England/Mid-Atlantic area (866-755-6622) in the 
Northeast Region (if in the Southeast Region (NC to FL), contact 877-
942-5343), and the U.S. Coast Guard within 24 hours.
    In the event of a vessel strike of a marine mammal by any vessel 
associated with the Project or if project activities cause a non-
auditory injury or death of a marine mammal, Avangrid must immediately 
report the incident to NMFS. If in the Greater Atlantic Region (Maine 
to Virginia), Avangrid must call the NMFS Greater Atlantic Stranding 
Hotline. Separately, Avangrid must also and immediately report the 
incident to NMFS Office of Protected Resources and GARFO. Avangrid must 
immediately cease all on-water activities, including pile driving, 
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 
MMPA. NMFS Office of Protected Resources may impose additional measures 
covered in the adaptive management provisions of this rule to minimize 
the likelihood of further prohibited take and ensure MMPA compliance. 
Avangrid may not resume their activities until notified by NMFS.
    In the event of any lost gear associated with the fishery surveys, 
Avangrid 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--Avangrid is required to submit interim 
SFV reports after each foundation installation and UXO/MEC detonation 
monitored as soon as possible but within 48 hours for Thorough SFV. 
Abbreviated SFV reports must be included in the weekly monitoring 
reports. A final SFV report for all foundation installations and UXO/
MEC detonations will be required within 90 days following completion of 
acoustic monitoring.

[[Page 52285]]

Adaptive Management

    These regulations contain an adaptive management component. Our 
understanding of the effects of offshore wind construction activities 
(e.g., acoustic stressors) on marine mammals continues to evolve, which 
makes the inclusion of an adaptive management component both valuable 
and necessary within the context of 5-year regulations.
    The monitoring and reporting requirements in this final rule 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 Avangrid regarding 
practicability, if such modifications will have a reasonable likelihood 
of more effectively accomplishing the goal of the measures.
    The following are some of the possible sources of new information 
to be considered through the adaptive management process: (1) results 
from monitoring reports, including the weekly, monthly, situational, 
and annual reports required; (2) results from 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 Avangrid 
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, or by Level A harassment and 
Level B harassment, we consider other factors, such as the likely 
nature of any behavioral responses (e.g., intensity, duration), the 
context of any such responses (e.g., critical reproductive time or 
location, migration), as well as effects on habitat, and the likely 
effectiveness of mitigation. We also assess the number, intensity, and 
context of estimated takes by evaluating this information relative to 
population status. Consistent with the 1989 preamble for NMFS' 
implementing regulations (54 FR 40338, September 29, 1989), the impacts 
from other past and ongoing anthropogenic activities are incorporated 
into this analysis via their impacts on the environmental baseline 
(e.g., as reflected in the regulatory status of the species, population 
size and growth rate where known, ongoing sources of human-caused 
mortality, or ambient noise levels).
    In the Estimated Take section, we estimated the maximum number of 
takes by Level A harassment and Level B harassment that are reasonably 
expected to occur from the specified activities based on the methods 
described. The impact that any given take would have is dependent on 
many case-specific factors that need to be considered in the negligible 
impact analysis (e.g., the context of behavioral exposures such as 
duration or intensity of a disturbance, the health of impacted animals, 
the status of a species that incurs fitness-level impacts to 
individuals, etc.). In this final rule, we evaluate the likely impacts 
of the enumerated harassment takes that may be authorized in the 
context of the specific circumstances surrounding these predicted 
takes. We also collectively evaluate this information, as well as other 
more taxa-specific information and mitigation measure effectiveness, in 
group-specific discussions that support our negligible impact 
conclusions for each stock. As described above, no serious injury or 
mortality is expected or may be authorized for any species or stock.
    The Description of the Specified Activities section describes 
Avangrid's specified activities that may result in take of marine 
mammals and an estimated schedule for conducting those activities. 
Avangrid has provided a realistic construction schedule although we 
recognize schedules may shift for a variety of reasons (e.g., weather 
or supply delays). However, the total amount of take would not exceed 
the 5-year totals and maximum annual total in any given year indicated 
in tables 33 and 35, respectively.
    We base our analysis and negligible impact determination on the 
maximum number of takes expected to 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 impact the takes have on the affected 
individuals and the number and the number 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, we provide some general analysis in this 
Negligible Impact Analysis and Determination section that applies to 
all the species listed in table 2, given that some of the anticipated 
effects of Avangrid's construction activities on marine mammals are 
expected to be relatively similar in nature. Then, we subdivide into 
more detailed discussions for mysticetes, odontocetes, and pinnipeds 
which have broad life-history traits that support an overarching 
discussion of some factors considered within the analysis for those 
groups (e.g., habitat-use patterns, high-level differences in feeding 
strategies).
    Last, we provide a negligible impact determination for each species 
or stock, providing species or stock-specific information or analysis, 
where appropriate, for example, for North Atlantic right whales, given 
their population status. Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of Avangrid's activities and then providing species- or stock-
specific information allows us to avoid duplication while ensuring that 
we have analyzed the effects of the specified activities on each 
affected species or stock. It is important to note that in the group or 
species sections, we base our negligible impact analysis on the maximum 
annual take that is predicted under the 5-year rule and that the 
negligible impact determination also examines the total taking over the 
5-year period; however, the majority of the impacts are associated with 
WTG foundation and ESP foundation installation, which would occur 
largely during years 2 and 3 (2026 through 2027). The estimated take in 
the other years is expected to be notably less, which is reflected in 
the total take that would be allowable under the rule (table 33).
    As described previously, no serious injury or mortality is 
anticipated or may 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 that

[[Page 52286]]

may be authorized would be in the form of auditory injury (i.e., PTS).
    The amount of harassment Avangrid has requested, and NMFS may 
authorize, is based on exposure models that consider the outputs of 
acoustic source and propagation models and other data such as frequency 
of occurrence or group sizes. Several conservative parameters and 
assumptions are ingrained into these models, such as assuming forcing 
functions that consider direct contact with piles (i.e., no cushion 
allowances) and application of the highest species density monthly 
among the areas of interest (i.e., Lease Area, cable route) for each 
species was applied to the exposure calculations. The exposure model 
results do not reflect any mitigation measures (other than 10-dB sound 
attenuation) or avoidance response. The amount of take requested and 
that may be authorized in a LOA also reflects careful consideration of 
other data (e.g., group size data, PSO data). As described above, while 
current planning includes pile installation divided between 2 or 3 
years (Schedule A or Schedule B), the maximum annual take estimates 
assume the maximum amount of take between the two schedules, to allow 
flexibility should schedules change again. For all species, the amount 
of take that may be 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 in no way a 
strictly linear relationship for behavioral effects across species, 
individuals, or circumstances, and less severe impacts result when 
exposed to lower received levels 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 the specified 
activities is dependent upon a number of contextual factors including, 
but not limited to, sound source frequencies, whether the sound source 
is moving towards the animal, hearing ranges of marine mammals, 
behavioral state at time of exposure, status of individual exposed 
(e.g., reproductive status, age class, health) and an individual's 
experience with similar sound sources. Southall et al. (2021), Ellison 
et al. (2012), and Moore and Barlow (2013), among others, emphasize the 
importance of context (e.g., behavioral state of the animals, distance 
from the sound source) in evaluating behavioral responses of marine 
mammals to acoustic sources.
    Harassment of marine mammals may result in behavioral modifications 
(e.g., avoidance, temporary cessation of foraging or communicating, 
changes in respiration or group dynamics, masking) or may result in 
auditory impacts such as hearing loss. In addition, some of the lower-
level physiological stress responses (e.g., change in respiration, 
change in heart rate) discussed previously would likely co-occur with 
the behavioral modifications, although these physiological responses 
are more difficult to detect and fewer data exist relating these 
responses to specific received levels of sound. Takes by Level B 
harassment, then, may have a stress-related physiological component as 
well; however, we would not expect the specified 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 an area that an animal would 
otherwise have chosen to move through or feed in for some amount of 
time, or breaking off one or a few feeding bouts. More severe effects 
could occur if an animal gets close enough to the source to receive a 
comparatively higher level, is exposed continuously to one source for a 
longer time, or is exposed intermittently to different sources 
throughout a day. Such effects might result in an animal having a more 
severe avoidance response and leaving a larger area for a day or more 
or potentially losing feeding opportunities for a day or more. Such 
severe behavioral effects are expected to occur infrequently, though, 
and given the extensive mitigation and monitoring measures included in 
this rule, we expect severe behavioral effects to be minimized.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (i.e., a 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 (2 to 62 m) and deep diving species, such as sperm whales, are 
not expected to be engaging in deep foraging dives when exposed to 
noise above NMFS harassment thresholds during the specified activities. 
Therefore, we do not anticipate impacts to deep foraging behavior to be 
impacted by the specified activities.
    It is 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 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 larger amounts 
of predicted take, we expect that the total anticipated takes represent 
exposures of a smaller number of individuals of which some would be 
taken across multiple days.
    For Avangrid, impact pile driving of foundation piles is most 
likely to result in a higher magnitude and severity of behavioral 
disturbance than other

[[Page 52287]]

activities (i.e., drilling, vibratory pile driving, UXO/MEC detonation, 
and HRG surveys). Impact pile driving has higher source levels and 
longer durations (on an annual basis) than vibratory pile driving or 
drilling 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, impact pile 
driving is planned for longer durations (i.e., a maximum of 10 UXO/MEC 
detonations are planned, which would result in only instantaneous 
exposures).
    While foundation installation impact pile driving is anticipated to 
be most impactful for these reasons, impacts are minimized through 
implementation of mitigation measures, including soft-starts, use of a 
sound attenuation system, the implementation of clearance zones that 
would facilitate a delay of pile driving commencement, and the 
implementation of shutdown zones. For example, given sufficient notice 
through the use of soft-start, marine mammals are expected to move away 
from a sound source that is disturbing prior to becoming exposed to 
very loud noise levels. The requirement to couple visual monitoring and 
PAM before and during all foundation installation and UXO/MEC 
detonations would increase the overall capability to detect marine 
mammals rather than when one method is used alone. Measures such as the 
requirement to apply sound attention devices and implement clearance 
zones also apply to UXO/MEC detonation(s), which also have the 
potential to elicit more severe behavioral reactions in the unlikely 
event that an animal is relatively close to the explosion in the 
instant that it occurs; hence, severity of behavioral responses are 
expected to be lower than would be the case without mitigation.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if 
some smaller subset of the takes are in the form of a longer (several 
hours or a day) and more severe response, if they are not expected to 
be repeated over numerous or sequential days, impacts to individual 
fitness are not anticipated. Also, the effect of disturbance is 
strongly influenced by whether it overlaps with biologically important 
habitats when individuals are present--avoiding biologically important 
habitats will reduce the likelihood of more significant behavioral 
impacts, for example 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 is one form of Level B harassment that marine mammals may incur 
through exposure to the specified 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, drilling, and UXO/MEC 
detonation are broadband noise sources but generate sounds in the lower 
frequency ranges (with most of the energy below 1-2 kHz, but with a 
small amount energy ranging up to 20 kHz); therefore, in general and 
all else being equal, we would anticipate the potential for TTS is 
higher in low-frequency cetaceans (i.e., mysticetes) than other marine 
mammal hearing groups, and would be more likely to occur in frequency 
bands in which they communicate. However, we would not expect the TTS 
to span the entire communication or hearing range of any species given 
that the frequencies produced by these activities do not span entire 
hearing ranges for any particular species. Additionally, though the 
frequency range of TTS that marine mammals might sustain would overlap 
with some of the frequency ranges of their vocalizations, the frequency 
range of TTS from the Project's pile driving, drilling, and UXO/MEC 
detonation activities would not typically span the entire frequency 
range of one vocalization type, much less span all types of 
vocalizations or other critical auditory cues for any given species. 
The required mitigation measures further reduce the potential for TTS 
in mysticetes.
    Generally, both the degree of TTS and the duration of TTS would be 
greater if the marine mammal is exposed to a higher level of energy 
(which would occur when the peak dB level is higher or the duration is 
longer). The threshold for the onset of TTS was discussed previously 
(refer back to Estimated Take section). 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 is also of importance when considering the potential 
impacts from TTS. In TTS laboratory studies (as discussed in the 
``Potential Effects of the Specified Activities on Marine Mammals and 
their Habitat'' section of the proposed rule), some using exposures of 
almost an hour in duration or up to 217 SEL, almost all individuals 
recovered within 1 day or less (often in minutes) and we note that 
while the pile-driving activities last for hours a day, it is unlikely 
that most marine mammals would stay in the close vicinity of the source 
long enough to incur more severe TTS. UXO/MEC detonation also has the 
potential to result in TTS. However, given the duration of exposure is 
extremely short (milliseconds), the degree of TTS (i.e., the amount of 
dB shift) is expected to be small and TTS duration is expected to be 
short (minutes to hours). Overall, given the small number of times that 
any individual might incur TTS, the low degree of TTS and the short 
anticipated duration, and the unlikely scenario that any TTS overlapped 
the entirety of a critical hearing range, it is unlikely that TTS (of 
the nature expected to result from the Project's activities) would 
result in behavioral changes or other impacts that would impact any 
individual's (of any hearing sensitivity) reproduction or survival.

Permanent Threshold Shift

    NMFS may authorize a very small amount of take by PTS to some 
marine mammal individuals. The numbers of annual takes by Level A 
harassment that may be authorized are relatively low for all marine 
mammal stocks and species (table 35). The only activity incidental to 
which we anticipate PTS may occur is from exposure to impact pile 
driving and UXO/MEC detonations, which produce sounds that are both 
impulsive and primarily concentrated in the lower frequency ranges 
(below 1 kHz) (David, 2006; Krumpel et al., 2021).
    There are no PTS data on cetaceans and only one 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)

[[Page 52288]]

suggest that most threshold shifts occur in the frequency range of the 
source up to one octave higher than the source. We would anticipate a 
similar result for PTS. Further, no more than a small degree of PTS is 
expected to be associated with any of the incurred Level A harassment, 
given that it is unlikely that animals would stay in the close vicinity 
of a source for a duration long enough to produce more than a small 
degree of PTS. 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 37); however, there would be 
multiple vessels/platforms equipped with PSOs as well as activity 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 and 
ensuring that any PTS that does occur is of a relatively low degree.
    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 detonations (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. Avangrid estimates 10 UXO/MECs may 
be detonated and the exposure analysis assumes the worst-case scenario 
that all of the UXO/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 this maximum size; thus, the amount of Level A 
harassment that may occur incidental to the detonation of the UXO/MECs 
would likely be less than what is estimated here. In addition, during 
impact pile driving, given sufficient notice through use of soft-start 
prior to implementation of full hammer energy during impact pile 
driving, marine mammals are expected to move away from a sound source 
that is annoying prior to it resulting in severe PTS.

Auditory Masking or Communication Impairment

    The ultimate potential impacts of masking on an individual are 
similar to those discussed for TTS (e.g., decreased ability to 
communicate, forage effectively, or detect predators), but an important 
difference is that masking only occurs during the time of the signal, 
versus TTS, which continues beyond the duration of the signal. Masking 
may also result from the sum of exposure to multiple signals, none of 
which might individually cause TTS. Fundamentally, masking is referred 
to as a chronic effect because one of the key potential harmful 
components of masking is its duration--the fact that an animal would 
have reduced ability to hear or interpret critical cues becomes much 
more likely to cause a problem the longer it is occurring. Inherent in 
the concept of masking is the fact that the potential for the effect is 
only present during the times that the animal and the source are in 
close enough proximity for the effect to occur (and further, this time 
period would need to coincide with a time that the animal was utilizing 
sounds at the masked frequency).
    As our analysis has indicated, for this project we expect that 
impact pile driving foundations have the greatest potential to mask 
marine mammal signals, and this pile driving may occur for several, 
albeit intermittent, hours per day, for multiple days per year. Masking 
is fundamentally more of a concern at lower frequencies (which are 
pile-driving dominant frequencies) because low frequency signals 
propagate significantly further than higher frequencies. Low frequency 
signals are also more likely to overlap with the narrower low frequency 
calls of mysticetes, 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 the specified activities, paired with 
habitat use patterns by marine mammals, makes it unlikely 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 (i.e., foundation installation and UXO/MEC 
detonation) may result in fish and invertebrate mortality or injury 
very close to the source, and all of the specified 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 NAS during foundation installation and UXO/MEC detonations 
would further limit the degree of impact. Behavioral changes in prey in 
response to construction activities could temporarily impact marine 
mammals' foraging opportunities in a limited portion of the foraging 
range but, because of the relatively small area of the habitat that may 
be affected at any given time (e.g., around a pile being driven), the 
impacts to marine mammal habitat are not expected to cause significant 
or long-term negative consequences.
    Cable presence is not anticipated to impact marine mammal habitat 
as these would be buried, and any electromagnetic fields emanating from 
the cables are not anticipated to result in consequences that would 
impact marine mammals prey to the extent they would be unavailable for 
consumption.
    The presence of wind turbines within the Lease Area could have 
longer-term impacts on marine mammal habitat, as the Project would 
result in the persistence of the structures within marine mammal 
habitat for more than 30 years. The presence of an extensive number of 
structures such as wind turbines are, in general, likely to result in 
local and broader oceanographic effects in the marine environment, and 
may disrupt dense aggregations and distribution of marine mammal 
zooplankton prey through altering the strength of tidal currents and 
associated fronts, changes in stratification, primary production, the 
degree of mixing, and stratification in the water column (Chen et al., 
2021; Johnson et al., 2021; Christiansen et al., 2022; Dorrell et al., 
2022). However, the scale of impacts is difficult to predict and may 
vary from hundreds of meters for local individual turbine impacts 
(Schultze et al., 2020) to large-scale changes stretching hundreds of 
kilometers (Christiansen et al., 2022).
    As discussed in the ``Potential Effects of the Specified Activities 
on Marine Mammals and their Habitat'' section of the proposed rule, the 
Project would consist of no more than 132 foundation positions (WTGs 
and ESPs) in the Lease Area, which will gradually become operational 
following construction completion and by the end of this rule. While 
there are likely to be oceanographic impacts from the presence of the 
Project, meaningful oceanographic impacts relative to stratification 
and mixing that would

[[Page 52289]]

significantly affect marine mammal habitat and prey over large areas in 
key foraging habitats during the effective period of the regulations 
are not anticipated. Although this area supports aggregations of 
zooplankton (i.e., baleen whale prey) that could be impacted if long-
term oceanographic changes occurred, prey densities are typically 
significantly less in the Project Area than in known baleen whale 
foraging habitats to the east and north (e.g., south of Nantucket and 
Martha's Vineyard, Great South Channel). For these reasons, if 
oceanographic features are affected by the Project during the effective 
period of the regulations, the impact on marine mammal habitat and 
their prey is likely to be comparatively minor.
    The New England Wind BiOp provided an evaluation of the presence 
and operation of the Project on, among other species, listed marine 
mammals and their prey. Overall, the BiOp concluded that impacts from 
loss of soft bottom habitat from the presence of turbines and placement 
of scour protection as well as any beneficial reef effects, are 
expected to be so small that they cannot be meaningfully measured, 
evaluated, or detected and are, therefore, insignificant. The BiOp also 
concluded that while the presence and operation of the wind farm may 
change the distribution of plankton with the wind farm, these changes 
are not expected to affect the oceanographic forces transporting 
zooplankton into the area. Regional distribution of plankton may vary 
from pre-wind facility conditions; however, given the lack of a known 
bathymetric feature that aggregates zooplankton prey in the lease area 
and acknowledging the information and uncertainty presented in the 
BiOp, the BiOp was not able to conclude that adverse effects on North 
Atlantic right whale foraging success due to near-field effects are 
reasonably certain to occur. Relative to far-field effects (tens of 
kilometers from the outermost row of foundations in the New England 
Wind lease area), the BiOp does not anticipate disruption to conditions 
that would aggregate prey in or outside the WFA that would have 
significant effects on ESA listed species. This is due to the scale of 
the project and its location in the center of the southern New England 
region and away from Nantucket Shoals and the tidal jet along the edge 
of Nantucket Shoals that are thought to aggregate zooplankton prey in 
that region.
    Therefore, the BiOp concluded that an overall reduction in biomass 
of plankton is not an anticipated outcome of operating the Project. 
Thus, because broader changes in the biomass of zooplankton are not 
anticipated, any higher trophic level impacts are also not anticipated. 
That is, no effects to pelagic fish or benthic invertebrates that 
depend on plankton as forage food are expected to occur. Zooplankton, 
fish, and invertebrates are all considered marine mammal prey and, as 
fully described in the BiOp, measurable, detectable, or significant 
changes to marine mammal prey abundance and distribution from wind farm 
operation are not anticipated.

Mitigation To Reduce Impact on All Species

    This rule includes an extensive suite of mitigation measures 
designed to minimize impacts on all marine mammals, with a focus on 
North Atlantic right whales. The Mitigation section discusses the 
manner in which the required mitigation measures reduce the magnitude 
and/or severity of the take of marine mammals, including the following. 
For installation of foundation piles, 10 overarching mitigation 
measures are required, which are intended to reduce both the number and 
intensity of marine mammal takes: (1) seasonal/time of day work 
restrictions; (2) use of multiple PSOs to visually observe for marine 
mammals (with any detection within specifically designated zones that 
would trigger a delay or shutdown); (3) use of PAM to acoustically 
detect marine mammals, with a focus on detecting baleen whales (with 
any detection within designated zones triggering delay or shutdown); 
(4) implementation of clearance zones; (5) implementation of shutdown 
zones; (6) use of soft-start (impact pile driving only); (7) use of 
noise attenuation technology; (8) maintaining situational awareness of 
marine mammal presence through the requirement that any marine mammal 
sighting(s) by Avangrid personnel must be reported to PSOs; (9) SFV 
monitoring; and (10) vessel strike avoidance measures to reduce the 
risk of a collision with a marine mammal and vessel. For UXO/MEC 
detonation, all the same measures as foundation installation are 
required except for soft-start and shutdown zones; neither are possible 
as a detonation is an instantaneous event. Lastly, for HRG surveys, we 
are requiring six measures: (1) measures specifically for Vessel Strike 
Avoidance; (2) specific requirements during daytime and nighttime HRG 
surveys; (3) implementation of clearance zones; (4) implementation of 
shutdown zones; (5) use of ramp-up of acoustic sources; and (6) 
maintaining situational awareness of marine mammal presence through the 
requirement that any marine mammal sighting(s) by Avangrid personnel 
must be reported to PSOs.
    For activities with large harassment isopleths, Avangrid is 
committed to reducing the noise levels generated to the lowest levels 
practicable and is required to ensure that they do not exceed a noise 
footprint above that which was modeled, assuming a 10-dB attenuation. 
Use of a soft-start during impact pile driving will allow animals to 
move away from (i.e., avoid) the sound source prior to applying higher 
hammer energy levels needed to install the pile (i.e., Avangrid will 
not use a hammer energy greater than necessary to install piles). 
Similarly, ramp-up during HRG surveys would allow animals to move away 
and avoid the acoustic sources before they reach their maximum energy 
level. For all activities, clearance zone and shutdown zone 
implementation, which are required when marine mammals are within given 
distances associated with certain impact thresholds for all activities, 
will reduce the magnitude and severity of marine mammal take. 
Additionally, the use of multiple PSOs (e.g., WTG and ESP foundation 
installation, UXO/MEC detonation, HRG surveys), PAM operators (for 
foundation installation and UXO/MEC detonation), and maintaining 
awareness of marine mammal sightings reported in the region during all 
specified activities will aid in detecting marine mammals that would 
trigger the implementation of the mitigation measures. The reporting 
requirements including SFV reporting (for foundation installation and 
foundation operation), will assist NMFS in identifying if impacts 
beyond those analyzed in this final rule are occurring, potentially 
leading to the need to enact adaptive management measures in addition 
to or in place of the mitigation measures.

Mysticetes

    Six mysticete species (comprising six stocks) of cetaceans (i.e., 
North Atlantic right whale, blue whale, humpback whale, fin whale, sei 
whale, and minke whale) may be taken by harassment. These species, to 
varying extents, utilize the specified geographical region, including 
the Project Area, for the purposes of migration, foraging, and 
socializing. Mysticetes are in the low-frequency hearing group.
    Behavioral data on mysticete reactions to pile-driving noise are 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on

[[Page 52290]]

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, impacts to prey, and TTS or PTS (in some cases).
    Mysticetes encountered in the Project Area are expected to be 
migrating or foraging. The extent to which an animal engages in these 
behaviors in the area is species-specific and varies seasonally. Given 
that feeding Biologically Important Areas (BIAs) for the North Atlantic 
right whale, humpback whale, fin whale, sei whale, and minke whale 
exist to the east and north of the Project Area (LaBrecque et al., 
2015; Van Parijs et al., 2015), many mysticetes are expected to 
predominantly be migrating through the Project Area towards or from 
these feeding grounds. While we acknowledged above that mortality, 
hearing impairment, or displacement of mysticete prey species may 
result locally from impact pile driving and UXO/MEC detonations, given 
the very short duration of and broad availability of prey species in 
the area and the availability of alternative suitable foraging habitat 
for the mysticete species most likely to be affected, any impacts on 
mysticete foraging is expected to be minor. Whales temporarily 
displaced from the Project Area are expected to have sufficient 
remaining feeding habitat available to them and would not be prevented 
from feeding in other areas within the biologically important feeding 
habitats found further north. In addition, any displacement of whales 
or interruption of foraging bouts would be expected to be relatively 
temporary in nature.
    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 35) 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 would not be 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 Avangrid has identified. 
Species-specific analysis regarding potential for repeated exposures 
and impacts is provided below.
    Fin, blue, minke, sei, and humpback whales are the only mysticete 
species for which PTS is anticipated and may be authorized. As 
described previously, PTS for mysticetes from some project activities 
may overlap frequencies used for communication, navigation, or 
detecting prey. However, given the nature and duration of the activity, 
the mitigation measures, and likely avoidance behavior, any PTS is 
expected to be of a small degree, would be limited to frequencies where 
pile-driving noise is concentrated (i.e., only a small subset of their 
expected hearing range) and would not be expected to impact 
reproductive success or survival.
North Atlantic Right Whale
    North Atlantic right whales are listed as endangered under the ESA 
and as both a depleted and strategic stock under the MMPA. As described 
in the ``Potential Effects to Marine Mammals and Their Habitat'' 
section of the proposed rule, North Atlantic right whales are 
threatened by a low population abundance, higher than average mortality 
rates, and lower than average reproductive rates. Recent studies have 
reported individuals showing high stress levels (e.g., Corkeron et al., 
2017) and poor health, which has further implications on reproductive 
success and calf survival (Christiansen et al., 2020; Stewart et al., 
2021; Stewart et al., 2022). As described below, a UME has been 
designated for North Atlantic right whales. Given this, the status of 
the North Atlantic right whale population is of heightened concern and, 
therefore, merits additional analysis and consideration. No Level A 
harassment, serious injury, or mortality is anticipated or may be 
authorized for this species.
    For North Atlantic right whales, this rule may authorize up to 126 
takes, by Level B harassment only, over the 5-year period, with a 
maximum annual allowable take of 60 (equating to approximately 17.65 
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 or UXO/MEC detonations (e.g., 
years when only HRG surveys would be occurring). The Project Area is 
known as a migratory corridor for North Atlantic right whales and given 
the nature of migratory behavior (e.g., continuous path), as well as 
the low number of total takes, we anticipate that few, if any, of the 
instances of take would represent repeat takes of any individual.
    The highest density of North Atlantic right whales in the Project 
Area occurs in the winter (tables 7-9). The New York Bight, including 
the Project Area, may be a stopover site for migrating North Atlantic 
right whales moving to or from southeastern calving grounds. As 
described above, the Project Area represents part of an important 
migratory area for right whales. Quintana-Rizzo et al. (2021) noted 
that southern New England, northeast of the Project Area, may be a 
stopover site for migrating right whales moving to or from southeastern 
calving grounds. The North Atlantic right whales observed during the 
study period were primarily concentrated in the northeastern and 
southeastern sections of the MA WEA during the summer (June-August) and 
winter (December-February). North Atlantic right whale distribution did 
shift to the west into the Rhode Island/Massachusetts Wind Energy Area 
(RI/MA WEA) in the spring (March-May). Overall, the Project Area 
contains habitat less frequently utilized by North Atlantic right 
whales than the more northerly southern New England region.
    In general, North Atlantic right whales in the Project Area are 
expected to be engaging in migratory behavior. Given the species' 
migratory behavior in the Project Area, we anticipate individual whales 
would be typically migrating through the area during most months when 
foundation installation and UXO/MEC detonation would occur, given the 
strict seasonal restrictions on foundation installation and UXO/MEC 
detonations from January through April, rather than lingering in the 
Project Area for extended periods of time. Other work that involves 
either much smaller harassment zones (e.g., HRG surveys) or is limited 
in amount (e.g., UXO/MEC detonation) may also occur during periods when 
North Atlantic right whales are using the habitat for migration. 
Therefore, it is likely that many of the takes would occur to separate 
individual whales, each

[[Page 52291]]

disturbed on no more than 1 day. It is important to note that the 
activities occurring from December through May that may impact North 
Atlantic right whales would be primarily HRG surveys, which would not 
result in very high received levels, if any at all, because of both the 
lower sources and the mitigation and monitoring measures that avoid or 
minimize impacts. Across all years, while it is possible an animal 
could have been exposed during a previous year, the low amount of take 
that may be authorized during the 5-year period of the rule makes this 
scenario possible but unlikely. However, if an individual were to be 
exposed during a subsequent year, the impact of that exposure is likely 
independent of the previous exposure and would cause no additive effect 
given the duration between exposures.
    As described in the Description of Marine Mammals in the Geographic 
Area section of the proposed rule, North Atlantic right whales are 
presently experiencing an ongoing UME (beginning in June 2017). 
Preliminary findings support human interactions, specifically vessel 
strikes and entanglements, as the cause of death for the majority of 
North Atlantic right whales. Given the current status of the North 
Atlantic right whale, the loss of even one individual could 
significantly impact the population. No mortality, serious injury, or 
injury of North Atlantic right whales as a result of the Project is 
expected or may be authorized. Any disturbance to North Atlantic right 
whales due to the specified activities is expected to result in 
temporary avoidance of the immediate area of construction. As no 
injury, serious injury, or mortality is expected or may be authorized, 
and Level B harassment of North Atlantic right whales will be reduced 
to the level of least-practicable adverse impact through use of 
mitigation measures, the number of takes of North Atlantic right whales 
that may be authorized would not exacerbate or compound the effects of 
the ongoing UME.
    As described in the general Mysticetes section above, foundation 
installation is likely to result in the highest amount of annual take 
and is of greatest concern given loud source levels. This activity 
would likely be limited to up to 113 days over a maximum of 3 years, 
during times when, based on the best available scientific data, North 
Atlantic right whales are less frequently encountered due to their 
migratory behavior. The potential types, severity, and magnitude of 
impacts are also anticipated to mirror that described in the general 
Mysticetes section above, including avoidance (the most likely 
outcome), changes in foraging or vocalization behavior, masking, a 
small amount of TTS, and temporary physiological impacts (e.g., change 
in respiration, change in heart rate). Importantly, the effects of the 
activities are expected to be sufficiently low-level and localized to 
specific areas as to not meaningfully impact important behaviors such 
as migratory behavior of North Atlantic right whales. These takes are 
expected to result in temporary behavioral reactions, such as slight 
displacement (but not abandonment) of migratory habitat or temporary 
cessation of feeding. Further, given these exposures are generally 
expected to occur to different individual right whales migrating 
through (i.e., many individuals would not be impacted on more than 1 
day in a year), and with some subset potentially being exposed on no 
more than a few days within the year, they are unlikely to result in 
energetic consequences that could affect reproduction or survival of 
any individuals.
    Overall, NMFS expects that any behavioral harassment of North 
Atlantic right whales incidental to the specified activities would not 
result in changes to their migration patterns or foraging success, as 
only temporary avoidance of an area during construction is expected to 
occur. As described previously, North Atlantic right whales migrating 
through the Project Area are not expected to remain in this habitat for 
extensive durations, and any temporarily displaced animals would be 
able to return to or continue to travel through and forage in these 
areas once activities have ceased.
    Although acoustic masking may occur in the vicinity of the 
foundation installation activities, based on the acoustic 
characteristics of noise associated with pile driving and drilling 
(e.g., frequency spectra, short duration of exposure) and construction 
surveys (e.g., intermittent signals), NMFS expects masking effects to 
be minimal (e.g., effects of foundation installation) 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. In 
addition, masking would likely only occur during the period of time 
that a North Atlantic right whale is in the relatively close vicinity 
of pile driving, which is expected to be intermittent within a day, and 
confined to the months in which North Atlantic right whales are at 
lower densities and primarily moving through the area, anticipated 
mitigation effectiveness, and likely avoidance behaviors. TTS is 
another possible form of Level B harassment that could result in brief 
periods of slightly reduced hearing sensitivity, affecting behavioral 
patterns by making it more difficult to hear or interpret acoustic cues 
within the frequency range (and slightly above) of sound produced 
during impact pile driving. However, any TTS would likely be of low 
amount, limited duration, and limited to frequencies where most 
construction noise is centered (i.e., below 2 kHz). NMFS expects that 
right whale hearing sensitivity would return to pre-exposure levels 
shortly after migrating through the area or moving away from the sound 
source.
    As described in the ``Potential Effects to Marine Mammals and Their 
Habitat'' section of the proposed rule, the distance of the receiver to 
the source influences the severity of response, with greater distances 
typically eliciting less severe responses. NMFS recognizes North 
Atlantic right whales migrating could be pregnant females (in the fall) 
and mothers with older calves (in the spring) and that these animals 
may slightly alter their migration course in response to any foundation 
pile driving. However, as described in the ``Potential Effects to 
Marine Mammals and Their Habitat'' section of the proposed rule, we 
anticipate that course diversion would be of small magnitude. Hence, 
while some avoidance of the pile-driving activities may occur, we 
anticipate any avoidance behavior of migratory North Atlantic right 
whales would be similar to that of gray whales (Tyack et al., 1983), on 
the order of hundreds of meters up to 1 to 2 km. This diversion from a 
migratory path otherwise uninterrupted by the Project's activities is 
not expected to result in meaningful energetic costs that would impact 
annual rates of recruitment of survival. NMFS expects that North 
Atlantic right whales would be able to avoid areas during periods of 
active noise production while not being forced out of this portion of 
their habitat.
    North Atlantic right whale presence in the Project Area is year-
round. However, abundance during summer months is lower compared to the 
winter months, with spring and fall serving as ``shoulder seasons'' 
wherein abundance waxes (fall) or wanes (spring). Given this year-round 
habitat usage, in recognition that where and when whales may actually 
occur during project activities is unknown as it depends on the annual 
migratory behaviors, NMFS is requiring a suite of mitigation measures 
designed to reduce impacts to North Atlantic right whales to the 
maximum extent practicable.

[[Page 52292]]

These mitigation measures (e.g., seasonal/daily work restrictions, 
vessel separation distances, reduced vessel speed) would not only avoid 
the likelihood of vessel strikes but also would minimize the severity 
of behavioral disruptions by minimizing impacts (e.g., through sound 
reduction using attenuation systems and reduced temporal overlap of 
project activities and North Atlantic right whales). This would further 
ensure that the number of takes by Level B harassment that are 
estimated to occur are not expected to affect reproductive success or 
survivorship by detrimental impacts to energy intake or cow/calf 
interactions during migratory transit. However, even in consideration 
of recent habitat-use and distribution shifts, Avangrid would still be 
installing foundations when the presence of North Atlantic right whales 
is expected to be lower.
    As described in the Description of Marine Mammals in the Geographic 
Area section, Avangrid would be constructed within the North Atlantic 
right whale migratory corridor BIA, which represents areas and months 
within which a substantial portion of a species or population is known 
to migrate. The area over which North Atlantic right whales may be 
harassed is relatively small compared to the width of the migratory 
corridor. The width of the migratory corridor in this area is 
approximately 300 km while the width of the Lease Area, at the longest 
point, is approximately 50 km and the width of the ensonified area with 
the largest distance to Level B harassment for North Atlantic right 
whale during foundation installation (vibratory pile driving) is 
approximately 105 km from the westernmost point to easternmost point. 
North Atlantic right whales may be displaced from their normal path and 
preferred habitat in the immediate activity area primarily from pile-
driving activities; however, we do not anticipate displacement to be of 
high magnitude (e.g., beyond a few kilometers). Thereby, any associated 
bio-energetic expenditure is anticipated to be small. There are no 
known North Atlantic right whale feeding, breeding, or calving areas 
within the Project Area. Prey species are mobile (e.g., calanoid 
copepods can initiate rapid and directed escape responses) and are 
broadly distributed throughout the Project Area (noting again that 
North Atlantic right whale prey is not particularly concentrated in the 
Project Area relative to nearby habitats). Therefore, any impacts to 
prey that may occur are also unlikely to impact North Atlantic right 
whales.
    The most significant measure to minimize impacts to individual 
North Atlantic right whales during monopile installations is the 
seasonal moratorium on foundation installation for all piles from 
January 1 through April 30 (with no impact pile driving or drilling 
scheduled in December and no vibratory pile driving in May and 
December, though pile driving may occur in December if it is 
unavoidable and only upon approval from NMFS) when North Atlantic right 
whale abundance in the Project Area is expected to be highest. UXO/MEC 
detonations would also be restricted from December through May. NMFS 
also expects this measure to greatly reduce the potential for mother/
calf pairs to be exposed to foundation installation noise above the 
Level B harassment threshold during their annual spring migration 
through the Project Area from calving grounds to primary foraging 
grounds (e.g., Cape Cod Bay). NMFS expects that the severity of any 
take of North Atlantic right whales would be reduced due to the 
additional mitigation measures that would ensure that any exposures 
above the Level B harassment threshold would result in only short-term 
effects to individuals exposed.
    Foundation installation and UXO/MEC detonation may only begin in 
the absence of North Atlantic right whales, as determined by visual and 
PAM. If foundation installation or UXO/MEC detonation has commenced, 
NMFS anticipates North Atlantic right whales would avoid the area, 
utilizing nearby waters to carry on pre-exposure behaviors. However, 
foundation installation must be shut down if a North Atlantic right 
whale is sighted at any distance, unless a shutdown is not feasible due 
to risk of injury or loss of life. Shutdown may occur anywhere if North 
Atlantic right whales are seen within or beyond the Level B harassment 
zone, further minimizing the duration and intensity of exposure. NMFS 
anticipates that if North Atlantic right whales go undetected and are 
exposed to foundation installation or UXO/MEC detonation noise, it is 
unlikely a North Atlantic right whale would approach the source 
location to the degree that they would purposely expose themselves to 
very high noise levels. These measures are designed to avoid PTS and 
also reduce the severity of Level B harassment, including the potential 
for TTS. While some TTS could occur, given the planned 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 
visual or acoustic detection. To maximize detection efficiency, NMFS 
requires the combination of PAM and visual observers. NMFS is requiring 
communication protocols with other project vessels, and other 
heightened awareness efforts (e.g., daily monitoring of North Atlantic 
right whale sighting databases) such that as a North Atlantic right 
whale approaches the source, and thereby could be exposed to higher 
noise energy levels, PSO detection efficacy would increase, the whale 
would be detected, and a delay to commencing foundation installation or 
shutdown (if feasible) would occur. In addition, the implementation of 
a soft-start for impact pile driving would provide an opportunity for 
whales to move away from the source if they are undetected, reducing 
their received levels. Further, Avangrid will not install pile 
foundations simultaneously. North Atlantic right whales would, 
therefore, not be exposed to concurrent impact pile driving on any 
given day and the area ensonified at any given time would be limited. 
The UXO/MEC detonations mitigation measures described above would 
further reduce the potential to be exposed to high received levels.
    For HRG surveys, the maximum distance to the Level B harassment 
threshold is 178 m. The estimated take, by Level B harassment only, 
associated with HRG surveys is to account for any North Atlantic right 
whale sightings PSOs may miss when HRG acoustic sources are active. 
However, because of the short maximum distance to the Level B 
harassment isopleth (178 m), the requirement that vessels maintain a 
distance of 500 m from any North Atlantic right whales, 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 North Atlantic right whale is observed within 500 m of the source, 
any exposure to noise levels above the harassment threshold (if any) 
would be very brief. To further minimize exposures, ramp-up of sub-
bottom profilers must be delayed during the clearance period if PSOs 
detect a North Atlantic right whale, or any other ESA-listed species, 
within 500 m of the acoustic source. With implementation of the 
mitigation requirements, take by Level A harassment is unlikely and, 
therefore, NMFS would not plan to authorize. Potential impacts 
associated with Level

[[Page 52293]]

B harassment would include low-level, temporary behavioral 
modifications, most likely in the form of avoidance behavior. Given the 
high level of precautions taken to minimize both the amount and 
intensity of Level B harassment on North Atlantic right whales, it is 
unlikely that the anticipated low-level exposures would lead to reduced 
reproductive success or survival.
    As described above, no serious injury or mortality, or Level A 
harassment, of North Atlantic right whale is anticipated or may be 
authorized. Extensive North Atlantic right whale-specific mitigation 
measures beyond the robust suite required for all species are expected 
to further minimize the amount and severity of Level B harassment. 
Given the documented habitat use within the area, the majority of the 
individuals predicted taken (i.e., no more than 126 instances of take, 
by Level B harassment, over the course of the 5-year rule, with an 
annual maximum of no more than 60 takes) would be impacted on only 1, 
or maybe 2, days in a year, and any impacts to North Atlantic right 
whales are expected to be in the form of lower-level behavioral 
disturbance. Given the magnitude and severity of the impacts discussed 
above, and in consideration of the required mitigation and other 
information presented, 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, we have determined that the take, by Level B harassment only, 
anticipated and that may be authorized would have a negligible impact 
on the North Atlantic right whale.
Blue Whale
    The blue whale, including the Western North Atlantic stock, is 
listed as Endangered under the ESA, and as both Depleted and Strategic 
under the MMPA. There are no known areas of specific biological 
importance in or around the project area, nor are there any UMEs. The 
actual abundance of the stock is likely significantly greater than what 
is reflected in each SAR because, as noted in the SARs, the most recent 
population estimates are primarily based on surveys conducted in U.S. 
waters and the stock's range extends well beyond the U.S. exclusive 
economic zone (EEZ). No serious injury or mortality is anticipated or 
may be authorized for this species.
    The rule would allow for the authorization of up to 6 takes, by 
harassment only, over the 5-year period. The maximum annual allowable 
take by Level A harassment and Level B harassment, would be 1 and 2, 
respectively (combined, this annual take (n=3) equates to approximately 
0.75 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 HR 
surveys would be occurring). 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 
behavioral Level B harassment, we would anticipate impacts to be 
limited to low-level, temporary behavioral responses with avoidance and 
potential masking impacts in the vicinity of the turbine installation 
to be the most likely type of response. Any potential PTS or 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 sei whales. Any hearing ability 
temporarily impaired from TTS is anticipated to return to pre-exposure 
conditions shortly after the exposures cease (e.g., if the animal moves 
away or the source stops). 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, 
and in consideration of the proposed 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, we 
have determined that the take (by harassment only) anticipated and that 
may be authorized would 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 may be authorized for 
this species. Fin whales are present in the waters off of Massachusetts 
year-round and are one of the most frequently observed large whales and 
cetaceans in continental shelf waters, principally from Cape Hatteras 
in the Mid-Atlantic northward to Nova Scotia, Canada (Sergeant, 1977; 
Sutcliffe and Brodie, 1977; Cetacean and Turtle Assessment Program 
(CETAP), 1982; Hain et al., 1992; Geo-Marine, 2010; BOEM, 2012; Edwards 
et al., 2015; Hayes et al., 2022).
    The rule would allow for the authorization of up to 421 takes, by 
harassment only, over the 5-year period. The maximum annual allowable 
take by Level A harassment and Level B harassment, would be 21 and 201, 
respectively. Combined, this annual take (n=222) equates to 
approximately 3.26 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 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 (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 with 
most sound below 2 kHz, which does not include the full predicted 
hearing range of fin whales.
    Fin whales are present in the waters off of New 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

[[Page 52294]]

Gulf Maine into the Gulf of St. Lawrence, areas north and east of the 
Project Area (89 FR 5495, January 29, 2024).
    As described previously in the proposed rule, the project area 
slightly overlaps a small fin whale feeding BIA that is active from 
March to October. Foundation installations and UXO/MEC detonations have 
seasonal work restrictions such that the temporal overlap between these 
project activities and the active BIA timeframe would exclude the 
months of March or April. We anticipate 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 availability of other nearby feeding habitat, any impacts from any 
of the planned activities to feeding activities are not anticipated to 
have significant impacts on fin whale energetics or fitness.
    Given the magnitude and severity of the impacts discussed above, 
including no more than 421 takes by harassment only over the course of 
the 5-year rule, and a maximum annual allowable take by Level A 
harassment and Level B harassment, of 21 and 201, respectively, 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, we 
have determined that the take by harassment anticipated and that may be 
authorized will have a negligible impact on the western North Atlantic 
stock of fin whales.
Humpback Whale
    The West Indies DPS of humpback whales is not listed as threatened 
or endangered under the ESA. However, as described in the Description 
of Marine Mammals in the Geographic Area, 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 (i.e., 
vessel strike or entanglement). Despite the UME, the relevant 
population of humpback whales (the West Indies breeding population, or 
DPS of which the Gulf of Maine stock is a part) remains stable at 
approximately 12,000 individuals.
    The rule would allow for the authorization of up to 301 takes by 
Level B harassment only over the 5-year period. No take by Level A 
harassment may be authorized. The maximum annual allowable take by 
Level A harassment and Level B harassment would be 18 and 134, 
respectively (this maximum annual take (n=152) equates to approximately 
10.89 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). Among the activities analyzed, 
foundation installation is likely to result in the highest amount of 
Level A harassment and Level B harassment annual take (i.e., 17 and 
126, respectively) of humpback whales.
    A recent study examining humpback whale occurrence in the New York 
Bight area has shown that humpback whales exhibit extended occupancy 
(mean 37.6 days) in the Bight area and were likely to return from one 
year to the next (mean 31.3 percent). Whales were also seen at a 
variety of other sites in the New York Bight within the same year, 
suggesting that they may occupy this broader area throughout the 
feeding season. The majority of whales were seen during summer (July-
September, 62.5 percent), followed by autumn (October-December, 23.5 
percent), and spring (April-June, 13.9 percent) (Brown et al., 2022). 
These data suggest that the 0 and 63 maximum annual instances of 
predicted takes by Level A harassment and Level B harassment, 
respectively, could consist of individuals exposed to noise levels 
above the harassment thresholds once during migration through the 
Project Area and/or individuals exposed on multiple days if they are 
utilizing the area as foraging habitat. The Lease Area, which is 321 
km\2\, comprises only a minor portion of the New York Bight area 
(43,388 km\2\), and a few repeated takes of the same individuals would 
be unlikely to meaningfully impact the energetics of any individuals 
given the availability of favorable foraging habitat across the Bight.
    For all the reasons described in the Mysticetes section above, we 
anticipate any potential PTS and TTS would be concentrated at one 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 301 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment of 18 and 134, respectively, and in consideration of the 
required mitigation measures 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, we have determined 
that the take by harassment anticipated and may be authorized will have 
a negligible impact on the Gulf of Maine stock of humpback whales.
Minke Whale
    Minke whales are not listed under the ESA, and the Canadian East 
Coast stock is neither considered depleted nor strategic under the 
MMPA. There are no known areas of specific biological importance in or 
adjacent to the Project Area. As described in the Description of Marine 
Mammals in the Geographic Area section, a UME has been designated for 
this species but is pending closure. No serious injury or mortality is 
anticipated or authorized for this species.
    The rule would allow for the authorization of up to 1,193 takes, by 
harassment only, over the 5-year period. The maximum annual allowable 
take by Level A harassment and Level B harassment would be 90 and 508, 
respectively (combined, this annual take (n=598) equates to 
approximately 2.72 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HRG surveys would be occurring).
    Minke whales are common offshore the U.S. Eastern Seaboard with a 
strong seasonal component in the continental shelf and in deeper, off-
shelf waters (CETAP, 1982; Hayes et al., 2022). In the Project Area, 
minke whales are predominantly migratory and their known feeding areas 
are to the north, including a feeding BIA in the southwestern Gulf of 
Maine and George's Bank. Therefore, they would be more likely to be 
moving through the Project Area, with each take representing a separate 
individual. However, it is possible that some subset

[[Page 52295]]

of the individual whales exposed could be taken up to a few times 
annually.
    As described in the Description of Marine Mammals in the Geographic 
Area section, there is a UME for Minke whales, along the Atlantic coast 
from Maine through South Carolina, with highest number of deaths in 
Massachusetts, Maine, and New York, and preliminary findings in several 
of the whales have shown evidence of human interactions or infectious 
diseases. However, we note that the population abundance is greater 
than 21,000 and the take that may be authorized through this action is 
not expected to exacerbate the UME in any way.
    We anticipate the impacts of this harassment to follow those 
described in the general Mysticetes section above. Any potential PTS 
would be minor (i.e., limited to a few dB) and any TTS would be of 
short duration and concentrated at one half or one octave above the 
frequency band of pile-driving noise (most sound is below 2 kHz), which 
does not include the full predicted hearing range of minke whales. 
Level B harassment would be temporary, with primary impacts being 
temporary displacement of the Project Area but not abandonment of any 
migratory or foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 1,193 takes of the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of 90 and 508, respectively), 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, we have determined that the 
take by harassment anticipated and that may be 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 may 
be authorized for this species.
    The rule would allow for the authorization of up to 74 takes, by 
harassment only, over the 5-year period. The maximum annual allowable 
take by Level A harassment and Level B harassment would be 4 and 31, 
respectively (combined, this annual take (n=35) equates to 
approximately 0.56 percent of the stock abundance, if each take were 
considered to be of a different individual). Similar to other 
mysticetes, we would anticipate the number of takes to represent 
individuals taken only once or, in rare cases two or three times, as 
most whales in the Project Area would be migrating. To a small degree, 
sei whales may forage in the Project Area, although the currently 
identified foraging habitats (BIAs) are to the northeast of the area in 
which the specified activities would occur (LaBrecque et al., 2015).
    With respect to the severity of those individual takes by 
behavioral Level B harassment, we would anticipate impacts to be 
limited to low-level, temporary behavioral responses with avoidance and 
potential masking impacts in the vicinity of the turbine installation 
to be the most likely type of response. Any potential PTS and TTS would 
likely be concentrated at half or one octave above the frequency band 
of pile-driving noise (most sound is below 2 kHz), which does not 
include the full predicted hearing range of sei whales. Moreover, any 
TTS would be of a small degree. Any avoidance of the Project Area due 
to the Project's activities would be expected to be temporary.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 74 takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment of 4 and 31, respectively), 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, we have determined that the 
take by harassment anticipated and that may be authorized will have a 
negligible impact on the Nova Scotia stock of sei whales.

Odontocetes

    In this section, we include information that applies to all of the 
odontocete species and stocks addressed below. Odontocetes include 
dolphins, porpoises, and all other whales possessing teeth, and we 
further divide them into the following subsections: sperm whales, small 
whales and dolphins, and harbor porpoises. These subsections include 
more specific information, as well as conclusions, for each stock 
represented.
    The takes that may be authorized for odontocetes are incidental to 
the specified activities. No serious injury or mortality may be 
authorized. We anticipate that, given ranges of individuals (i.e., that 
some individuals remain within a small area for some period of time), 
and non-migratory nature of some odontocetes in general (especially as 
compared to mysticetes), 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 HRG surveys. While we do expect animals to avoid the 
area during foundation installation and UXO/MEC detonations, their 
habitat range is extensive compared to the area ensonified during these 
activities. In addition, 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. Passive acoustic data show 
that odontocete foraging dives may be disrupted by exposure to loud 
sounds (Madsen et al., 2006; Miller et al., 2009; see ``Diving and 
Foraging'' in the proposed rule). However, as stated in the proposed 
rule, changes in dive behavior in response to noise exposure can vary 
widely and the changes may be a result of exposure to a sound source or 
a natural variation in behavior. As foraging behavior may be 
temporarily affected in the vicinity of the sound source (e.g., reduced 
dive rates, temporary area avoidance), NMFS expects that foraging 
efforts would shift to other nearby foraging areas away from the sound 
source but does not expect this to occur for a long duration but be 
limited to when sound sources (e.g., pile driving, near instantaneous 
UXO/MEC detonation) are active. We do not expect foraging to be 
appreciably reduced from HRG surveys given the minor nature of 
disturbance associated with the activity and evidence that some 
odontocete species do not appear disturbed at all from these surveys 
(e.g., bow riding dolphins). While masking could also

[[Page 52296]]

occur during foundation installation (e.g., to vocalizations, 
echolocation; see ``Vocalizations and Auditory Masking'' section in the 
proposed rule for a detailed discussion), 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, and 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 Massachusetts 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 United States, and the waters off of 
Massachusetts, including the Project Area, do not contain any 
particularly unique odontocete habitat features.
Sperm Whale
    Sperm whales are listed as endangered under the ESA, and the North 
Atlantic stock is considered both Depleted and Strategic under the 
MMPA. The North Atlantic stock spans the East Coast out into oceanic 
waters well beyond the U.S. 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 may be authorized for this species.
    The rule would allow for the authorization of up to 2 takes by 
Level A harassment and 108 takes by Level B harassment (n=110), over 
the 5-year period. No serious injury or mortality may be authorized. 
The maximum annual allowable take by Level A harassment would be 1 and 
Level B harassment would be 57, which equates to approximately 0.98 
percent of the stock abundance, if each take were considered to be of a 
different individual, with lower numbers than that expected in the 
years without foundation installation (e.g., years when only HRG 
surveys would be occurring). Given sperm whale's preference for deeper 
waters, especially for feeding, it is unlikely that individuals will 
remain in the Project Area for multiple days, and therefore, the 
estimated takes likely represent exposures of different individuals on 
1 day annually.
    If sperm whales are present in the Project Area during any Project 
activities, they will likely be only transient visitors and not 
engaging in any significant behaviors. Further, the potential for TTS 
is low for reasons described in the general Odontocetes 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, neither direct behavioral disturbance nor TTS are not expected to 
interfere with foraging behavior. The most likely impact would be 
avoidance of the ensonified areas around the activities during the time 
that the activities are occurring.
    Given the magnitude and severity of the impacts discussed above 
(i.e., no more than 2 takes by Level A harassment and 108 takes by 
Level B harassment, over the course of the 5-year rule, and a maximum 
annual allowable take of 58), 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, we have determined that the take by 
harassment anticipated and that may be authorized will have a 
negligible impact on the North Atlantic stock of sperm whales.
Dolphins and Small Whales (Including Delphinids)
    The twenty-six species and stocks included in this group (which are 
indicated in table 2 in the Delphinidae, Ziphiidae, and Kogiidae 
families) are not listed under the ESA, however, pantropical spotted 
dolphins and spinner dolphins are listed as Depleted under the MMPA and 
Short-finned pilot whales are listed as Strategic under the MMPA. The 
remaining species are not listed as depleted or strategic under the 
MMPA. There are no known areas of specific biological importance in or 
around the project area for any of these species, nor has a UME been 
designated for any. No serious injury or mortality is anticipated or 
may be authorized for these species.
    The eighteen delphinid species with take that may be authorized for 
the Project are Atlantic spotted dolphin, Atlantic white-sided dolphin, 
bottlenose dolphin, Clymene dolphin, common dolphin, long-finned pilot 
whale, short-finned pilot whale, Risso's dolphin, false killer whale, 
Fraser's dolphin, killer whale, melon-headed whale, pantropical spotted 
dolphin, pygmy killer whale, rough-toothed dolphin, spinner dolphin, 
striped dolphin, and white-beaked dolphin.
    Many of these delphinid species are rare for the project area, with 
preferred habitat at much deeper water depths or different water 
temperatures than what are found within the project area. For instance, 
the Clymene dolphin, false killer whale, Fraser's dolphin, melon-

[[Page 52297]]

headed whale, pantropical spotted dolphin, pygmy killer whale, rough-
toothed dolphin, and spinner dolphin prefer tropical to subtropical 
waters but have, on occasion, been sighted in deep waters at or beyond 
the continental shelf break in the New England area during the summer 
months (Hayes et al., 2019; Hayes et al., 2020). Striped dolphins are 
found in warm-temperate to tropical waters but prefer continental slope 
waters offshore to the Gulf Stream, when in the New England area they 
have only been sighted at water depths deeper than 900 m (Hayes et al., 
2020). White-beaked dolphins prefer colder waters and are found more 
northerly than the project area in the western Gulf of Maine and around 
Cape Cod (Hayes et al., 2020). Killer whales, a rarity in the New 
England area, prefer much deeper and colder waters than those in the 
New England area (Waring et al., 2015).
    For seventeen of the Delphinid species, the rule would allow for 
the authorization of up to between 10 and 3,543 takes (depending on 
species), by harassment only, over the 5-year period. The maximum 
annual allowable take for these species by Level A harassment and Level 
B harassment, would range from 0 to 1 and 5 to 2,067, respectively, 
(combined, this annual take (n=5 to 2,068) equates to approximately 0.1 
to 3.20 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 HR surveys would be occurring).
    For common dolphins, the eighteenth of the delphinid species, the 
rule would allow for the authorization of up to 46,761 takes, by 
harassment only, over the 5-year period. The maximum annual allowable 
take by Level A harassment is 1 and by Level B harassment is 26,572 
(combined, this annual take (n=26,573) equates to approximately to 
28.54 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 HR surveys would be occurring). 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, we anticipate that a fair number of these instances of 
take in a day represent multiple exposures of a smaller number of 
individuals, meaning the actual number of individuals taken is lower. 
Although some amount of repeated exposure to some individuals is likely 
given the duration of activity planned 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.
    For Atlantic white-sided dolphin and Bottlenose dolphin, given the 
relatively higher number of takes and as compared to the abundance, 
while many of the takes likely represent exposures of different 
individuals on one day a year, some subset of the individuals exposed 
could be taken up to a few times annually. For the remaining 
Delphinids, given they are considered rare or uncommon in the area, it 
is unlikely that individuals would remain in the project area for 
multiple days, and therefore the estimated takes likely represent 
exposures of different individuals on one day each annually.
    The six Ziphiidae species with take that may be authorized for the 
Project are Cuvier's beaked whale, Blainville's beaked whale, Gervais' 
beaked whale, Sowerby's beaked whale, True's beaked whale, and Northern 
bottlenose whale. The two species of Kogiidae with take that may be 
authorized for the Project are the dwarf sperm whale and pygmy sperm 
whale. These species are rare for the project area and prefer habitat 
at much deeper water depths than what are found within the project 
area. For instance, the beaked whales and Kogiidae species have been 
sighted in deep waters at or beyond the continental shelf break in the 
New England area (Hayes et al., 2020). The Northern bottlenose whales 
are extremely uncommon or rare in waters of the U.S and are rarely in 
waters less than 2,000 m deep (Waring et al., 2015). For these eight 
species, the rule would allow for the authorization of up to between 6 
and 8 takes for each species, by harassment only, over the 5-year 
period. The maximum annual allowable take for these species by Level A 
harassment and Level B harassment, would range from 0 to 2 and 2 to 4, 
respectively (combined, this annual take (n= 3 to 4) equates to 
approximately <0.1 percent of the stock abundance for each species, if 
each take were considered to be of a different individual), with far 
lower numbers than that expected in the years without foundation 
installation (e.g., years when only HR surveys would be occurring). 
Given this species is considered rare in the area and prefers deeper 
waters, especially for feeding, it is unlikely that individuals would 
remain in the project area for multiple days, and therefore the 
estimated takes likely represent exposures of different individuals on 
one day each annually.
    The number of takes, likely movement patterns of the affected 
species, and the intensity of any Level A or B harassments, combined 
with the availability of alternate nearby foraging habitat suggests 
that the likely impacts would not impact the fitness, reproduction or 
survival of any individuals. Some species, such as the common dolphin, 
are gregarious in nature (i.e., travel in large groups) with high 
densities in the project area, which results in a relatively higher 
amount of take. While delphinids may be taken on several occasions, 
none of these species are known to have small home ranges within the 
project area or known to be particularly sensitive to anthropogenic 
noise. The potential for PTS in dolphins and small whales is very low 
and, if PTS does occur, would occur to a limited number of individuals, 
be of small degree, and would be limited to the frequency ranges of the 
activity which does not span across most of their hearing range. Some 
TTS can also occur but, again, it would be limited to the frequency 
ranges of the activity and any loss of hearing sensitivity is 
anticipated to return to pre-exposure conditions shortly after the 
animals move away from the source or the source ceases.
    Beaked whales are known to be particularly sensitive to 
anthropogenic noise (e.g., Southall et al., 2017; Clowewiak et al., 
2017); however, the project area does not contain primary beaked whale 
habitat and only two to three groups of beaked whales could be harassed 
by Project activities. Further, beaked whales are deep diver foragers 
and the shallow-water project area does not contain suitable beaked 
whale foraging habitat. Hence, no foraging impacts are anticipated.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed 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, we 
have determined that the take (by harassment only) that may be 
authorized would have a negligible

[[Page 52298]]

impact on all of the species and stocks addressed in this section.
Harbor Porpoise
    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 United States coastal waters, at 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).
    The rule would allow for the authorization of up to 2,468 takes, by 
harassment only, over the 5-year period. The maximum annual allowable 
take by Level A harassment and Level B harassment would be 67 and 
1,119, respectively (combined, this annual take (n=1,186) equates to 
approximately 1.38 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HRG surveys would be occurring). Given the number of 
takes, while many of the takes likely represent exposures of different 
individuals on 1 day a year, some subset of the individuals exposed 
could be taken up to a few times annually. No serious injury or 
mortality may be authorized.
    Regarding the severity of takes by Level B harassment, because 
harbor porpoises are particularly sensitive to noise, it is likely that 
a fair number of the responses could be of a moderate nature, 
particularly to pile driving. In response to pile driving, harbor 
porpoises are likely to avoid the area during construction, as 
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne 
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United 
Kingdom, although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. However, foundation 
installation is scheduled to occur off the coast of Massachusetts and, 
given alternative foraging areas, any avoidance of the area by 
individuals is not likely to impact the reproduction or survival of any 
individuals.
    With respect to PTS and TTS, the effects on an individual are 
likely relatively low given the frequency bands of pile driving (most 
energy below 2 kHz) compared to harbor porpoise hearing (150 Hz to 160 
kHz peaking around 40 kHz). Specifically, TTS is unlikely to impact 
hearing ability in their more sensitive hearing ranges, or the 
frequencies in which they communicate and echolocate. We expect any PTS 
that may occur to be within the very low end of their hearing range 
where harbor porpoises are not particularly sensitive and any PTS would 
be of small magnitude. As such, any PTS would not interfere with key 
foraging or reproductive strategies necessary for reproduction or 
survival.
    As discussed in the draft 2023 SARs (89 FR 5495, January 29, 2024), 
harbor porpoises are seasonally distributed. During fall (October-
December) and spring (April-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 (i.e., >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 European wind 
farm construction, the time of year in which work would occur is when 
harbor porpoises are not in highest abundance, and any work that does 
occur would not result in the species' abandonment of the waters off of 
Massachusetts.
    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, we 
have determined that the take by harassment anticipated and that may be 
authorized will have a negligible impact on the Gulf of Maine/Bay of 
Fundy stock of harbor porpoises.

Phocids (Harbor Seals, Gray Seals, and Harp Seals)

    The harbor seal, gray seal, harp seal, and hooded seal are not 
listed under the ESA, and neither the western North Atlantic stock of 
gray seal, western North Atlantic stock of harp seal, nor the western 
North Atlantic stock of harbor seal are considered depleted or 
strategic under the MMPA. There are no known areas of specific 
biological importance in or around the Project Area. As described in 
the Description of Marine Mammals in the Geographic Area section, a UME 
has been designated for harbor seals and gray seals and is described 
further below. No serious injury or mortality is anticipated or may be 
authorized for these species.
    For the four seal species, the rule would allow for the 
authorization of up to between 2 and 4,077 takes for each species by 
harassment only over the 5-year period. The maximum annual allowable 
take for these species by Level A harassment and Level B harassment, 
respectively, would be 0 and 1 (hooded seals), 18 and 1,301 (harbor 
seals), 9 and 1,537 (gray seal), and 9 to 2,013 (harp seals) (this 
annual take equates to approximately <0.1 percent of the stock 
abundance for harp seals, 5.54 percent of the stock abundance for gray 
seals, and 2.15 percent of the stock abundance for harbor seals). The 
population abundance of hooded seal is unknown but, considering that no 
more than one hooded seal would be taken by Level B harassment 
annually, it would be reasonable to assume this would constitute a 
small percentage of the stock. For the four species, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HRG surveys would be occurring). Though gray seals, 
harbor seals, and harp seals are considered migratory and no specific 
feeding areas have been designated in the area, the higher number of 
takes relative to the stock abundance suggests that while some of the 
takes likely represent exposures of different individuals on 1 day a 
year, it is likely that some subset of the individuals exposed could be 
taken several times annually. For hooded seals, given this species is 
considered rare in the area, it is unlikely that individuals would 
remain in the project area for multiple days, and therefore the 
estimated takes likely represent exposures of different individuals on 
one day each annually.
    Harbor, gray, and harp seals occur in Massachusetts waters most 
often in winter (December through May), when most foundation 
installation and UXO/MEC detonations would not occur due to seasonal 
restrictions on conducting these activities). Seals are also 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. Take of these species is noise from pile driving, drilling, 
UXO/MEC detonations, and HRG surveys.
    There are no gray seal pupping colonies or known haul-out sites 
near

[[Page 52299]]

the Project Area, although gray seals may haul out at known harbor seal 
haul out sites. The nearest known gray seal pupping sites are greater 
than 100 nautical miles (nmi) (185 km) away, at Muskeget Island in the 
Nantucket Sound, Monomoy National Wildlife Refuge, and in eastern Maine 
(Rough, 1995). Known haul out locations are located closer to Monomoy 
Refuge and on Nantucket in Massachusetts (Kenney and Vigness-Raposa, 
2010). Harbor seals have the potential to occur in areas adjacent to 
the export cable corridors and landfall sites. Although there are no 
known harbor seal haul outs in the Project Area, harbor seals occur 
throughout the Massachusetts coastline and have the potential to haul 
out at many beach sites. As the closest documented pinniped haul out 
sites are located further than 150 km away from the Project Area, NMFS 
does not expect any harassment to occur and would not plan to authorize 
any take from in-air impacts on hauled-out seals.
    As described in the ``Potential Effects to Marine Mammals and Their 
Habitat'' section in the proposed rule, construction of wind farms in 
Europe resulted in pinnipeds temporarily avoiding construction areas 
but returning within short time frames after construction was complete 
(Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 2015; Russell 
et al., 2016; Brasseur et al., 2010). Effects on pinnipeds that are 
taken by Level B harassment in the Project Area would likely be limited 
to reactions such as avoidance in the form of 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, is unlikely to result in impacts on the reproduction or 
survival of any individuals. Moreover, pinnipeds would benefit from the 
mitigation measures described in 50 CFR part 217.
    As described above, noise from UXO/MEC detonation is 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 where pinniped hearing is most sensitive. In 
summary, any PTS and TSS 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.
    For harbor seals, the population abundance is over 61,000 and the 
annual mortality/serious injury (M/SI; 339) for the seals is well below 
PBR (i.e., 1,729) (89 FR 5495, January 29, 2024). The population 
abundance for gray seals in the United States is over 27,000, with an 
estimated overall abundance, including seals in Canada, of 
approximately 366,400 (89 FR 5495, January 29, 2024). In addition, the 
abundance of gray seals is likely increasing in the U.S. Atlantic, as 
well as in Canada (89 FR 5495, January 29, 2024). For harp seals and 
hooded seals, for which there is no recent UME, the total U.S. fishery-
related mortality and serious injury for this stock is very low 
relative to the stock size and can be considered insignificant and 
approaching zero mortality and serious injury rate (Hayes et al., 2019; 
Hayes et al., 2022). The harp seal stock abundance appears to have 
stabilized (Hayes et al., 2022).
    Given the magnitude and severity of the impacts from the specified 
activities 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, we have determined that the take by 
harassment anticipated and may be authorized will have a negligible 
impact on harbor, gray, harp, and hooded seals.

Negligible Impact Determination

    No mortality or serious injury is anticipated to occur or may be 
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; therefore, in practice, and where 
estimated numbers are available, NMFS compares the number of 
individuals estimated to be taken to the most appropriate estimation of 
abundance of the relevant species or stock in our determination of 
whether an authorization is limited to small numbers of marine mammals. 
When the predicted number of individuals to be taken is less than one-
third of the species or stock abundance, the take is considered to be 
of small numbers. Additionally, other qualitative factors may be 
considered in the analysis, such as the temporal or spatial scale of 
the activities.
    NMFS may authorize incidental take by Level A harassment and/or 
Level B harassment of 38 species of marine mammals (with 38 managed 
stocks). The maximum number of instances of takes by combined Level A 
harassment and Level B harassment possible within any one year relative 
to the best available population abundance is less than one-third for 
all species and stocks potentially impacted. Unless otherwise noted, 
the small numbers analysis conservatively assumes each take occurs to a 
different individual in the population.
    For 28 stocks, less than 6 percent of the stock abundance may be 
authorized for take by harassment under this final rule. Specific to 
the North Atlantic right whale, the maximum amount of take reasonably 
likely to occur per year, which is by Level B harassment only, is 60, 
or 17.65 percent of the stock abundance, assuming that each instance of 
take represents a different individual. Please see table 35 for 
information relating to this small numbers analysis.
    For seven species, there are no current abundance estimates 
available; hence the percentage of the population taken is unknown. 
However, these constitute rare species and only a small amount of take 
may be authorized each year under this final rule. For three of these 
species, no more than five takes per year may be authorized under this 
final rule (hooded seal, pygmy killer whale, and northern bottlenose 
whale). For the melon-headed whale, Fraser's dolphin, and killer whale, 
a maximum of 109, 192, and 10, respectively, takes are allowed under 
this final rule, based on the prediction that a group may be 
encountered up to a few times during

[[Page 52300]]

the activity and representing approximately one to three average group 
sizes. Hence, the amount of take for all rare species with unknown 
populations can reasonably be considered a small number.
    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

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) 
requires that each Federal agency ensure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the promulgation of rulemakings, NMFS 
consults internally whenever we propose to authorize take for 
endangered or threatened species, and in this case, consulted with the 
NOAA GARFO.
    This final rule allows for the take of five marine mammal species 
listed under the ESA: the North Atlantic right, blue, sei, fin, and 
sperm whale. The Permit and Conservation Division requested initiation 
of section 7 consultation with NMFS GARFO on May 9, 2023 for the 
promulgation of the rulemaking. NMFS GARFO issued a BiOp on February 
16, 2024, 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 BiOp is available at 
https://repository.library.noaa.gov/view/noaa/60610.
    Avangrid is required to abide by the promulgated regulations, as 
well as the reasonable and prudent measure and terms and conditions of 
the BiOp and Incidental Take Statement, as issued by NMFS.

National Environmental Policy Act

    To comply with NEPA (42 U.S.C. 4321 et seq.) and the NOAA 
Administrative Order 216-6A, NMFS must evaluate our proposed action 
(i.e., promulgation of regulation) and alternatives with respect to 
potential impacts on the human environment. NMFS participated as a 
cooperating agency on the BOEM 2024 Final EIS (FEIS), which was 
finalized on March 1, 2024, and is available at: https://www.boem.gov/renewable-energy/state-activities/new-england-wind-formerly-vineyard-wind-south. In accordance with 40 CFR 1506.3, NMFS independently 
reviewed and evaluated the 2024 New England 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 2024 New England Wind FEIS 
through a joint Record of Decision (ROD) with BOEM. The joint ROD for 
adoption of the 2024 New England 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 (OMB) has determined that this 
rule is not significant for purposes of Executive Order 12866.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration 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 unless that collection of information 
displays a currently valid OMB control number. These requirements have 
been approved by OMB under control number 0648-0151 and include 
applications for regulations, subsequent LOA, and reports. Send 
comments regarding any aspect of this data collection, including 
suggestions for reducing the burden, to NMFS.

Coastal Zone Management Act

    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. As required, in June 2022, Park City Wind (now Avangrid) 
submitted a Federal consistency certification to Massachusetts Coastal 
Zone Management's (MA CZM) and to the Rhode Island Coastal Resources 
Management Council (CRMC) for approval of the COP by BOEM and the 
issuance of an Individual Permit by United States Army Corps of 
Engineers, under sections 10 and 14 of the Rivers and Harbors Act and 
section 404 of the Clean Water Act (15 CFR part 930, subpart E).
    NMFS determined that Avangrid's application for MMPA ITRs is an 
unlisted activity under the State of New York's coastal management 
program 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 a NOR 
for the application in the Federal Register on August 22, 2022 (87 FR 
51345), and published the proposed rule on June 8, 2023 (88 FR 37606). 
The states of Massachusetts and Rhode Island did not request approval 
from the Director of NOAA's Office for Coastal Management to review the 
application as an unlisted activity, and the time period for making 
such request has expired. Therefore, NMFS has determined the ITA is not 
subject to Federal consistency review.

List of Subjects in 50 CFR Part 217

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


[[Page 52301]]


    Dated: May 28, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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 GG, consisting of Sec. Sec.  217.320 through 217.329, to 
read as follows:
Subpart GG--Taking Marine Mammals Incidental to the New England Wind 
Project Offshore of Massachusetts
Sec.
217.320 Specified activity and specified geographical region.
217.321 Effective dates.
217.322 Permissible methods of taking.
217.323 Prohibitions.
217.324 Mitigation requirements.
217.325 Requirements for monitoring and reporting.
217.326 Letter of Authorization.
217.327 Modifications of Letter of Authorization.
217.328--217.329 [Reserved]

Subpart GG--Taking Marine Mammals Incidental to the New England 
Wind Project Offshore of Massachusetts


Sec.  217.320  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to activities associated 
with Phase 1 and Phase 2 of the New England Wind project (hereafter 
referred to as the ``Project'') developed by Avangrid Renewables, LLC, 
and its successors or assigns (hereafter referred to as the ``LOA 
Holder''), and those persons it authorizes or funds to conduct 
activities on its behalf in the area outlined in paragraph (b) of this 
section. Requirements imposed on LOA Holder must be implemented by 
those persons it authorizes or funds to conduct activities on its 
behalf.
    (b) The specified geographical region is the Mid-Atlantic Bight, 
defined as waters from Cape Hatteras, North Carolina to Cape Cod, 
Massachusetts and extending into the west Atlantic to the 100-m 
isobath, and includes, but it not limited to, the Bureau of Ocean 
Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 
0534, OCS-A 0561, and portions of OCS-A 0501 Commercial Lease of 
Submerged Lands for Renewable Energy Development, along export cable 
routes, and at the sea-to-shore transition points in Barnstable County, 
Massachusetts.
    (c) The specified activities are impact pile driving, vibratory 
pile driving, and drilling of wind turbine generator (WTG) and 
electrical service platform (ESP) foundations; 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 ESP(s) 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.  217.321  Effective dates.

    Regulations in this subpart are effective from March 27, 2025, 
through March 26, 2030.


Sec.  217.322  Permissible methods of taking.

    Under a Letter of Authorization (LOA) issued pursuant to Sec.  
216.106 of this chapter and Sec.  217.326 or Sec.  217.327, LOA Holder, 
and those persons it authorizes or funds to conduct activities on its 
behalf, may incidentally, but not intentionally, take marine mammals 
within the area described in Sec.  217.320(b) in the following ways, 
provided LOA Holder is in complete compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate LOA:
    (a) By Level B harassment associated with the acoustic disturbance 
of marine mammals by impact and vibratory pile driving and drilling 
(foundation installation), UXO/MEC detonations, and HRG site 
characterization surveys;
    (b) By Level A harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving of WTG and ESP foundations and 
UXO/MEC detonations;
    (c) Take by mortality or serious injury of any marine mammal 
species is not authorized; and
    (d) The incidental take of marine mammals by the activities listed 
in paragraphs (a) and (b) of this section is limited to the following 
species:

                        Table 1 to Paragraph (d)
------------------------------------------------------------------------
    Marine mammal species        Scientific name            Stock
------------------------------------------------------------------------
Atlantic spotted dolphin....  Stenella frontalis..  Western North
                                                     Atlantic.
Atlantic white-sided dolphin  Lagenorhynchus        Western North
                               acutus.               Atlantic.
Blainsville's beaked whale..  Mesoplodon            Western North
                               densirostris.         Atlantic.
Blue whale..................  Balaenoptera          Western North
                               musculus.             Atlantic.
Bottlenose dolphin..........  Tursiops truncatus..  Western North
                                                     Atlantic, offshore.
Clymene dolphin.............  Stenella clymene....  Western North
                                                     Atlantic.
Cuvier's beaked whale.......  Ziphius cavirostris.  Western North
                                                     Atlantic.
Dwarf sperm whale...........  Kogia sima..........  Western North
                                                     Atlantic.
False killer whale..........  Pseudorca crassidens  Western North
                                                     Atlantic.
Fin whale...................  Balaenoptera          Western North
                               physalus.             Atlantic.
Fraser's dolphin............  Lagenodelphis hosei.  Western North
                                                     Atlantic.
Gervais' beaked whale.......  Mesoplodon europaeus  Western North
                                                     Atlantic.
Gray seal...................  Halichoerus grypus..  Western North
                                                     Atlantic.
Harbor porpoise.............  Phocoena phocoena...  Gulf of Maine/Bay of
                                                     Fundy.
Harbor seal.................  Phoca vitulina......  Western North
                                                     Atlantic.
Harp seal...................  Pagophilus            Western North
                               groenlandicus.        Atlantic.
Hooded seal.................  Cystophora cristata.  Western North
                                                     Atlantic.
Humpback whale..............  Megaptera             Gulf of Maine
                               novaeangliae.
Killer whale................  Orcinus orca........  Western North
                                                     Atlantic.
Long-finned pilot whale.....  Globicephala melas..  Western North
                                                     Atlantic.
Melon-headed whale..........  Peponocephala         Western North
                               electra.              Atlantic.
Minke whale.................  Balaenoptera          Canadian Eastern
                               acutorostrata.        Coastal.
North Atlantic right whale..  Eubalaena glacialis.  Western North
                                                     Atlantic.
Northern bottlenose whale...  Hyperoodon            Western North
                               ampullatus.           Atlantic.

[[Page 52302]]

 
Pantropical spotted dolphin.  Stenella attenuata..  Western North
                                                     Atlantic.
Pygmy killer whale..........  Feresa attenuata....  Western North
                                                     Atlantic.
Pygmy sperm whale...........  Kogia breviceps.....  Western North
                                                     Atlantic.
Risso's dolphin.............  Grampus griseus.....  Western North
                                                     Atlantic.
Rough-toothed dolphin.......  Steno bredanensis...  Western North
                                                     Atlantic.
Sei whale...................  Balaenoptera          Nova Scotia.
                               borealis.
Short-beaked common dolphin.  Delphinus delphis...  Western North
                                                     Atlantic.
Short-finned pilot whale....  Globicephala          Western North
                               macrorhynchus.        Atlantic.
Sowerby's beaked whale......  Mesoplodon bidens...  Western North
                                                     Atlantic.
Sperm whale.................  Physeter              Western North
                               macrocephalus.        Atlantic.
Spinner dolphin.............  Stenella              Western North
                               longirostris.         Atlantic.
Striped dolphin.............  Stenella              Western North
                               coeruleoalba.         Atlantic.
True's beaked whale.........  Mesoplodon mirus....  Western North
                                                     Atlantic.
White-beaked dolphin........  Lagenorhynchus        Western North
                               albirostris.          Atlantic.
------------------------------------------------------------------------

Sec.  217.323  Prohibitions.

    Except for the takings described in Sec.  217.322 and authorized by 
a LOA issued under Sec.  217.326 or Sec.  217.327, 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 this subpart;
    (b) Take any marine mammal not specified in Sec.  217.322(d);
    (c) Take any marine mammal specified in Sec.  217.322(d) in any 
manner other than as specified in Sec.  217.322(a) and (b); or
    (d) Take any marine mammal specified in Sec.  217.322(d), after 
NMFS Office of Protected Resources determines such taking results in 
more than a negligible impact on the species or stocks of such marine 
mammals.


Sec.  217.324  Mitigation requirements.

    When conducting the specified activities in the specified 
geographical region, LOA Holder must implement the following mitigation 
measures contained in this section and any LOA issued under Sec. Sec.  
217.326 and 217.327. These mitigation measures include, but are not 
limited to:
    (a) General conditions. LOA Holder must comply with the following 
general measures:
    (1) A copy of any issued LOA must be in the possession of LOA 
Holder and its designees, all vessel operators, visual protected 
species observers (PSOs), passive acoustic monitoring (PAM) operators, 
pile driver operators, and any other relevant designees operating under 
the authority of the issued LOA;
    (2) LOA Holder must conduct training for construction, survey, and 
vessel personnel and the marine mammal monitoring team (PSO and PAM 
operators) prior to the start of all in-water construction activities 
in order to explain responsibilities, communication procedures, marine 
mammal detection and identification, mitigation, monitoring, and 
reporting requirements, safety and operational procedures, and 
authorities of the marine mammal monitoring team(s). This training must 
be repeated for new personnel who join the work during the project. A 
description of the training program must be provided to NMFS at least 
60 days prior to the initial training before in-water activities begin. 
Confirmation of all required training must be documented on a training 
course log sheet and reported to NMFS Office of Protected Resources 
prior to initiating project activities;
    (i) A copy of the Marine Mammal Monitoring Plan must be made 
available on all vessels and staffed platforms. A simple guide must be 
included with the Marine Mammal Monitoring Plan to aid personnel in 
identifying species if they are observed in the vicinity of the project 
area.
    (ii) [Reserved]
    (3) Prior to and when conducting any in-water activities and vessel 
operations, LOA Holder personnel and contractors (e.g., vessel 
operators, PSOs) must use available sources of information on North 
Atlantic right whale presence in or near the Project Area including 
daily monitoring of the Right Whale Sightings Advisory System, and 
monitoring of Coast Guard VHF Channel 16 throughout the day to receive 
notification of any sightings and/or information regarding the 
establishment of mandatory or voluntary speed restrictions (e.g., 
Dynamic Management Areas (DMAs), Seasonal Management Areas (SMAs), and/
or acoustically-triggered slow zones),and any information regarding 
North Atlantic right whale sighting locations to provide situational 
awareness for both vessel operators, PSO(s), and PAM operators; The 
marine mammal monitoring team must monitor these systems no less than 
every 4 hours;
    (4) Any marine mammal observed by project personnel must be 
immediately communicated to any on-duty PSOs, PAM operator(s), and all 
vessel captains. Any large whale observation or acoustic detection by 
PSOs or PAM operators must be conveyed to all vessel captains;
    (5) LOA Holder must establish and implement minimum visibility, 
clearance, and shutdown zones as described in the LOA. For North 
Atlantic right whales, any visual detection by a PSO at any distance or 
acoustic detection by PAM operators within the PAM monitoring zone 
(where applicable for the specified activities) must trigger a delay to 
the commencement of pile driving (i.e., impact pile driving and 
vibratory pile driving) and drilling;
    (6) PSOs and PAM operators have the authority to call for a delay 
or shutdown to an activity, and LOA Holder must instruct all vessel 
personnel regarding the authority of the PSOs and PAM operators. If a 
delay to commencing an activity is called for by the Lead PSO or PAM 
operator, LOA Holder must take the required mitigative action. If a 
shutdown of an activity is called for by a PSO or PAM operator, LOA 
Holder must take the required mitigative action unless shutdown would 
result in imminent risk of injury or loss of life to an individual, 
pile refusal, or pile instability. Any disagreement between the PSO, 
PAM operator, and the activity operator regarding delays or shutdowns 
must only be discussed after the mitigative action has occurred;
    (7) 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

[[Page 52303]]

clearance zone prior to beginning a specified activity (e.g., pile 
driving (impact and vibratory), drilling, UXO/MEC detonations, and HRG 
acoustic sources), the activity must be delayed. If an activity is 
ongoing and individual from a species for which authorization has not 
been granted, or a species for which authorization has been granted but 
the authorized take number has been met, is observed entering or within 
the relevant shutdown zone, the activity must be shut down (i.e., 
cease) immediately, unless shutdown would result in imminent risk of 
injury or loss of life to an individual, pile refusal, or pile 
instability. The activity must not commence or resume until the 
animal(s) has been confirmed to have left the clearance area and is on 
a path away from the applicable zone or after 15 minutes with no 
further sightings for small odontocetes and pinnipeds or 30 minutes 
with no further sightings for all other species;
    (8) Foundation installation (i.e., impact and vibratory pile 
driving, drilling), UXO/MEC detonation, and HRG survey activities must 
only commence when minimum visibility zones (for UXO/MEC detonations 
the visual clearance zones) are fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and the clearance zones are clear of marine 
mammals, as determined by the Lead PSO, for at least 30 minutes 
immediately prior to initiation of equipment (i.e., vibratory and 
impact pile driving, drilling, UXO/MEC detonations, and HRG surveys 
that use boomers, sparkers). Any marine mammals observed within a 
clearance or shutdown zone must be allowed to remain in the area (i.e., 
must leave of their own volition) prior to commencing foundation 
installation activities, UXO/MEC detonation, or HRG surveys;
    (9) In the event that a large whale species 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;
    (10) For in-water construction heavy machinery activities listed in 
Sec.  217.320(c), if a marine mammal is on a path towards or comes 
within 10 meters (m; 32.8 feet (ft)) of equipment, LOA Holder must 
cease operations until the marine mammal has moved more than 10 m on a 
path away from the activity to avoid direct interaction with equipment;
    (11) All vessels must be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and LOA Holder 
must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS 
Office of Protected Resources;
    (12) By accepting the LOA, LOA Holder consents to on-site 
observation and inspections by Federal agency personnel (including NOAA 
personnel) during activities described in this subpart, for the 
purposes of evaluating the implementation and effectiveness of measures 
contained within the LOA and this subpart; and
    (13) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with a PSO, PAM operator, or vessel crew member acting as an 
observer, or attempt the same. This prohibition includes, but is not 
limited to, any action that interferes with an observer's 
responsibilities, or that creates an intimidating, hostile, or 
offensive environment. Personnel may report any violations to the NMFS 
Office of Law Enforcement.
    (b) Vessel strike avoidance measures. LOA Holder must comply with 
the following vessel strike avoidance measures while in the specified 
geographical 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 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 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.
    (i) 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 Office of Protected Resources 
prior to vessel activities.
    (ii) [Reserved]
    (2) 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;
    (3) All underway vessels operating at any speed must have a 
dedicated visual observer on duty at all times to monitor for marine 
mammals within a 180 degree direction of the forward path of the vessel 
(90 degree port to 90 degree starboard) located at an appropriate 
vantage point for ensuring vessels are maintaining appropriate 
separation distances. Dedicated visual observers may be third-party 
observers (i.e., NMFS-approved PSOs; see Sec.  217.325(a)) or trained 
crew members (see paragraph (b)(1) of this section). 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 for marine 
mammals 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;
    (4) All vessel operators and dedicated visual observers on each 
transiting vessel must continuously monitor U.S. Coast Guard VHF 
Channel 16, at the onset of transiting through the duration of 
transiting, over which North Atlantic right whale sightings are 
broadcasted. At the onset of transiting and at least once every 4 
hours, vessel operators and/or trained crew member(s) must also monitor 
the project's Situational Awareness System (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. Any large whale sighting by any Project personnel must be 
communicated immediately to all project-associated vessels;
    (5) Any observations of any large whale by any LOA Holder staff or 
contractor, including vessel crew, must be communicated immediately to 
on-duty PSOs, PAM operators, and all vessel captains to increase 
situational awareness;
    (6) All vessel operators must abide by existing applicable vessel 
speed

[[Page 52304]]

regulations (50 CFR 224.105). Nothing in this subpart exempts vessels 
from any other applicable marine mammal speed or approach regulations;
    (7) Vessels, regardless of size, must not travel over 10 kn (11.5 
mph) from November 1st through April 30th, annually, in the specified 
geographical region. During all other time periods, all vessels must 
transit active Slow Zones (i.e., DMAs or acoustically-triggered slow 
zone), and SMAs at 10 kn or less (11.5 mph);
    (i) If vessel(s) are traveling at speeds 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, LOA Holder must monitor the 
transit corridor in real-time with PAM prior to and during transits.
    (ii) [Reserved]
    (8) All vessels operators, regardless of their vessel's 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 cetaceans are observed within 500 m (0.31 mi) of a 
transiting vessel;
    (9) All vessels, regardless of size, 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 in the Project area must 
trigger an additional 24-hour period. If a North Atlantic right whale 
is reported via any of the monitoring systems (described in paragraph 
(b)(4) of this section) within 10 km of a transiting vessel(s), that 
vessel must operate at 10 kn (11.5 mph) or less for 24 hours following 
the reported detection. A slowdown in the transit corridor expires when 
there has been no further visual or acoustic detection in the transit 
corridor in the past 24 hours;
    (10) All vessels must maintain a minimum separation distance of 500 
m from North Atlantic right whales. If underway, all vessels must steer 
a course away from any sighted North Atlantic right whale at 10 kn 
(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. All vessels must comply with North Atlantic right 
whale approach restrictions at 50 CFR 224.103(c);
    (11) All vessels must maintain a minimum separation distance of 100 
m (328 ft) from sperm whales and non-North Atlantic right whale baleen 
whales. If one of these species is sighted within 100 m of a transiting 
vessel, that vessel must turn away from the whale(s), reduce speed, and 
shift the engine(s) to neutral. Engines must then 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 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) When a marine mammal(s) is sighted while a vessel is 
transiting, the vessel must take action as necessary to avoid violating 
the relevant separation distances (e.g., attempt to remain parallel to 
the animal's course, slow down, and avoid abrupt changes in direction 
until the animal has left the area). This measure does not apply to any 
vessel towing gear or any situation where respecting the relevant 
separation distance would be unsafe (i.e., any situation where the 
vessel is navigationally constrained);
    (14) All vessels underway must not divert or alter course to 
approach any marine mammal; and
    (15) LOA Holder must submit a Marine Mammal Vessel Strike Avoidance 
Plan to NMFS Office of Protected Resources for review and approval at 
least 180 days prior to the planned start of vessel activity. The plan 
must provide details on the vessel-based observer and PAM protocols for 
transiting vessels. The plan must also provide details on the transit 
corridor. If a plan is not submitted and approved by NMFS prior to 
vessel operations, all project vessels must travel at speeds of 10 kn 
(11.5 mph) or less. LOA Holder must comply with any approved Marine 
Mammal Vessel Strike Avoidance Plan.
    (c) WTG and ESP foundation installation. The following requirements 
apply to impact and vibratory pile driving and drilling activities 
associated with the installation of WTG and ESP foundations:
    (1) Impact pile driving and drilling must not occur January 1 
through April 30, annually. Impact pile driving and drilling 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. 
LOA Holder must notify NMFS in writing by September 1 of that year that 
pile driving or drilling cannot be avoided and circumstances are 
expected to necessitate pile driving or drilling in December;
    (2) Vibratory pile driving (e.g., vibratory setting of piles) must 
not occur December 1-May 31, annually;
    (3) Monopiles must be no larger than 13-m in diameter. Pin piles 
must be no larger than 4 m in diameter. During all monopile and pin 
pile installation, the minimum amount of hammer energy necessary to 
effectively and safely install and maintain the integrity of the piles 
must be used. Hammer energies must not exceed 6,000 kilojoules (kJ) for 
monopile installations and 3,500 kJ for pin pile installation. No more 
than two monopiles or four pin piles may be installed per day. No 
concurrent pile driving (i.e., impact pile driving or vibratory pile 
driving) or drilling may occur. All mitigation measures required for or 
applicable to jacket foundations are required for bottom-frame 
foundations that utilize pile foundations;
    (i) LOA Holder must not initiate foundation installation (impact 
pile driving, vibratory pile driving, and drilling) except during 
daylight hours; daylight hours are defined as no earlier than 1 hour 
after civil sunrise and no later than 1.5 hours prior to civil sunset. 
Foundation installation may only continue into darkness if stopping 
operations represents a risk to human health, safety, and/or pile 
stability; and
    (ii) LOA Holder must not initiate pile driving or drilling earlier 
than 1 hour after civil sunrise or later than 1.5 hours prior to civil 
sunset, unless LOA Holder submits, and NMFS approves, an Alternative 
Monitoring Plan for Nighttime Foundation Installation (i.e., Nighttime 
Foundation Installation Plan), that demonstrates the efficacy of their 
night vision devices to effectively monitor the mitigation zones. LOA 
Holder must submit this plan or plans (if separate Daytime Reduced 
Visibility and Nighttime Monitoring Plans are prepared) at least 180 
calendar days before foundation installation is planned to begin. This 
plan(s) must include, but is not limited to, a complete description of 
how LOA Holder will monitor foundation installation activities during 
reduced visibility conditions (e.g., rain, fog) and

[[Page 52305]]

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' satisfaction that marine mammals can reliably and 
effectively be detected within the clearance and shutdown zones for 
monopiles and pin pile before and during pile driving and drilling, 
nighttime foundation installation (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 LOA Holder will monitor 
foundation installation activities during daytime when unexpected 
changes to lighting or weather occur during pile driving (i.e., impact 
or vibratory) or drilling that prevent visual monitoring of the full 
extent of the clearance and shutdown zones.
    (4) LOA Holder must utilize soft-start at the beginning of monopile 
and pin pile impact pile driving and at any time following a cessation 
of impact pile driving of 30 minutes or longer;
    (5) LOA Holder must establish clearance and shutdown zones, which 
must be measured using the radial distance around the pile driving or 
drilling location;
    (6) LOA Holder must utilize PSO(s) and PAM operator(s), as 
described in Sec.  217.325. At least nine on-duty PSOs must be actively 
observing marine mammals before, during, and after installation of 
foundation piles (i.e., monopiles and pin piles). At least three on-
duty PSOs must be stationed and observing on the foundation 
installation vessel/platform. A minimum of three PSOs must be active on 
each of the two dedicated PSO vessels. On-duty PSOs must be located at 
the best vantage point to observe and document marine mammal sightings 
in proximity to the clearance and, if applicable, shutdown zones. 
Concurrently, at least one PAM operator must be actively monitoring for 
marine mammals with PAM 60 minutes before, during, and 30 minutes after 
pile driving and drilling in accordance with a NMFS-approved PAM Plan;
    (7) PSOs must visually monitor clearance zones for marine mammals 
for a minimum of 60 minutes prior to commencing pile driving or 
drilling. At least one PAM operator must review data from at least 24 
hours prior to pile driving or drilling and actively monitor 
hydrophones for 60 minutes prior to, at all times during, and for 30 
minutes after pile driving and drilling. The entire minimum visibility 
zone must be visible (i.e., not obscured by dark, rain, fog, etc.) for 
a full 60 minutes immediately prior to commencing pile driving or 
drilling. All clearance zones must be confirmed to be free of marine 
mammals for 30 minutes immediately prior to the beginning of pile 
driving, drilling, and soft-start procedures. PAM operators must 
immediately communicate all detections of marine mammals at any 
distance to the Lead PSO, including any determination regarding species 
identification, distance, and bearing and the degree of confidence in 
the determination;
    (8) If a marine mammal is detected within or about to enter the 
applicable clearance zones during the clearance periods defined in 
paragraph (c)(7) of this section, activities must be delayed until the 
animal has been visually observed exiting the clearance zone or until a 
specific time period has elapsed with no further sightings. The 
specific time periods are 15 minutes for small odontocetes and 
pinnipeds and 30 minutes for all other species;
    (i) For foundation installation activities between May 1-May 14 and 
November 1-December 31, if a North Atlantic right whale is observed at 
any distance or acoustically detected within the PAM monitoring zone of 
the pile being driven (impact or vibratory) or area being drilled, pile 
driving and drilling must be delayed or stopped (unless activities must 
proceed for human safety or installation feasibility concerns) and may 
not resume until the following day or until the animal is confirmed to 
have exited the zone via aerial or additional vessel surveys;
    (ii) [Reserved]
    (9) LOA Holder must deploy at least two functional noise abatement 
systems that reduce noise levels to the modeled harassment isopleths, 
assuming 10-dB attenuation, during all pile driving and drilling and 
comply with the following measures:
    (i) A single bubble curtain must not be used;
    (ii) A big double bubble curtain may be used without being paired 
with another noise attenuation device;
    (iii) The bubble curtain(s) must distribute air bubbles using an 
air flow rate of at least 0.5 m\3\/(min*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must adjust the air supply and operating pressure such that the maximum 
possible noise attenuation performance of the bubble curtain(s) is 
achieved;
    (iv) 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;
    (v) No parts of the ring or other objects may prevent full seafloor 
contact with a bubble curtain ring;
    (vi) Construction contractors must train personnel in the proper 
balancing of airflow to the bubble curtain ring. LOA Holder must 
provide NMFS Office of Protected Resources with a bubble curtain 
performance test and maintenance report to review within 72 hours after 
each pile using a bubble curtain is installed. Additionally, a full 
maintenance check (e.g., manually clearing holes) must occur prior to 
each pile being installed;
    (vii) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (c)(9) must occur prior to pile driving and 
drilling of foundation piles. For any noise mitigation device in 
addition to the bubble curtain, LOA Holder must inspect and carry out 
appropriate maintenance on the system and ensure the system is 
functioning properly prior to every pile driving event; and
    (viii) LOA Holder must inspect and carry out appropriate 
maintenance on the noise attenuation system prior to every foundation 
installation event (i.e., for each pile driven foundation) and UXO/MEC 
detonation and prepare and submit a Noise Attenuation System (NAS) 
inspection/performance report to NMFS Office of Protected Resources. 
For piles for which Thorough sound field verification (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.
    (10) PAM operator(s) must review data from at least 24 hours prior 
to pile driving and drilling and actively monitor hydrophones for 60 
minutes prior to pile driving and drilling. All

[[Page 52306]]

clearance zones must be acoustically confirmed to be free of marine 
mammals for 60 minutes before activities can begin immediately prior to 
starting vibratory pile driving, drilling, and a soft-start of impact 
pile driving. PAM operators will continue to monitor for marine mammals 
for at least 30 minutes after pile driving or drilling concludes. The 
exact details for PAM requirements must be submitted to NMFS within the 
PAM plan;
    (i) LOA Holder must implement PAM in accordance with the NMFS-
approved PAM Plan, as described in Sec.  217.325(c)(9). The PAM system 
components (i.e., acoustic buoys) must not be placed closer than 1 km 
(0.6 mi) to the pile being driven so that the activities do not mask 
the PAM system. LOA Holder must demonstrate and prove the detection 
range of the system they plan to deploy while considering potential 
masking from concurrent pile-driving and vessel noise. The PAM system 
must be designed to detect all marine mammals to the maximum extent 
practicable, maximize baleen whale detections, and must be capable of 
detecting North Atlantic right whales within the PAM monitoring zone;
    (ii) [Reserved]
    (11) For North Atlantic right whales, any visual observation by a 
PSO at any distance or acoustic detection within the PAM Monitoring 
Zone must trigger a delay to the commencement of pile driving. The 
North Atlantic right whale clearance zone may only be declared clear if 
no North Atlantic right whale acoustic or visual detections have 
occurred within the clearance zone during the 60-minute monitoring 
period. Any large whale sighting by a PSO or detected by a PAM operator 
that cannot be identified as a non-North Atlantic right whale must be 
treated as if it were a North Atlantic right whale;
    (12) If a marine mammal is detected (visually or acoustically) 
entering or within the respective shutdown zone after pile driving has 
begun, the PSO or PAM operator must call for a shutdown of pile driving 
or drilling. If a marine mammal is detected entering or within the 
respective shutdown zone after pile driving or drilling has begun, LOA 
Holder must stop pile driving or drilling immediately unless shutdown 
is not practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals, or the lead engineer determines there is 
pile refusal or pile instability. If pile driving or drilling is not 
shut down, LOA Holder must reduce hammer energy to the lowest level 
practicable and the reason(s) for not shutting down must be documented 
and reported to NMFS Office of Protected Resources within the 
applicable monitoring reports (e.g., weekly, monthly) (see Sec.  
217.325(f));
    (13) A visual observation or acoustic detection of a North Atlantic 
right whale at any distance by PSOs or an acoustic detection within the 
PAM monitoring zone triggers shutdown requirements under paragraph 
(c)(12) of this section. If pile driving or drilling has been shut down 
due to the presence of a North Atlantic right whale, pile driving or 
drilling may not restart until the North Atlantic right whale has 
neither been visually or acoustically detected by on-duty PSOs and PAM 
operators for 30 minutes;
    (14) If pile driving or drilling has been shut down due to the 
presence of a marine mammal other than a North Atlantic right whale, 
pile driving or drilling must not restart until either the marine 
mammal(s) has voluntarily left the specific clearance zones and has 
been visually or acoustically confirmed beyond that clearance zone, or, 
when specific time periods have elapsed with no further sightings or 
acoustic detections have occurred. The specific time periods are 15 
minutes for small odontocetes and pinnipeds and 30 minutes for all 
other marine mammal species. In cases where these criteria are not met, 
pile driving may restart only if necessary to maintain pile stability 
at which time LOA Holder must use the lowest hammer energy practicable 
to maintain stability; and
    (15) LOA Holder must conduct SFV during the following foundation 
installation activities in accordance with the following requirements:
    (i) For the first construction year, Thorough SFV must be conducted 
for the first three monopiles installed with only an impact hammer 
(i.e., impact pile driving); the first three monopiles installed with a 
vibratory hammer (i.e., vibratory pile driving or setting) followed by 
an impact hammer; the first two jacket foundations (all piles) 
installed; the first foundation (regardless of type) where drilling is 
used; the first monopile and first jacket foundation (all piles) 
installed in December (winter sound speed profile); and, the first 
foundation for any foundation scenarios that were modeled for the 
exposure analysis (e.g., rated hammer energy, number of strikes, 
representative location) that does not fall into one of the previously 
listed categories (e.g., if the first two jacket foundation are 
installed with only an impact hammer, Thorough SFV would be required 
for the first jacket foundation installed with vibratory and impact 
pile driving);
    (ii) For any subsequent construction year, Thorough SFV must be 
conducted on the first monopile and first jacket foundation (all piles) 
if there are no changes to the pile driving equipment (e.g., same 
hammer, same Noise Attenuation System); Thorough SFV requirements for 
the first construction year apply if a revised Facilities Design Report 
and Fabrication and Installation Report (FDR/FIR) or other information 
is submitted to BOEM and Bureau of Safety and Environmental Enforcement 
(BSEE) that details changes to the equipment (e.g., different hammer, 
different noise attenuation system); if any foundation type or 
technique included in the requirements for the first construction year 
that was not installed until a subsequent construction year (e.g., if 
drilling is not used until year 2 or 3, the first foundation where 
relief drilling is used must have Thorough SFV);
    (iii) During Thorough SFV, installation of the next foundation (of 
the same type/foundation method) may not proceed until LOA Holder has 
reviewed the initial results from the Thorough SFV and determined that 
there were no exceedances of any distances to the identified thresholds 
based on modeling assuming 10 dB attenuation. Subsequent SFV 
measurements are also required should larger piles be installed or if 
additional monopiles are driven that may produce louder sound fields 
than those previously measured (e.g., higher hammer energy, greater 
number of strikes, etc.). If any of the Thorough SFV measurements from 
any pile indicate that the distance to any isopleth of concern for any 
species is greater than those modeled assuming 10 dB attenuation, LOA 
Holder must notify NMFS within 24 hours of reviewing the Thorough SFV 
measurements and must implement the following measures for the next 
pile of the same type/installation methodology, as applicable;
    (iv) If any of the Thorough SFV measurements indicate that the 
distances to level A thresholds for marine mammals (peak or cumulative) 
are greater than the modeled distances (assuming 10 dB attenuation), 
the clearance and shutdown zones for subsequent piles of the same type 
(e.g., if triggered by SFV results for a monopile, for the next 
monopile) must be increased so that they are at least the size of the 
distances to those thresholds as indicated by SFV. 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

[[Page 52307]]

expanded shutdown and/or clearance zone; LOA Holder must deploy any 
additional PSOs consistent with the approved Marine Mammal Monitoring 
Plan in consideration of the size of the new zones and the species that 
must be monitored use of the expanded clearance and shutdown zones must 
continue for additional piles until LOA Holder requests and receives 
concurrence from NMFS Office of Protected Resources and Greater 
Atlantic Regional Fisheries Office (GARFO) to revert to the original 
clearance and shutdown zones. LOA Holder must identify one or more 
additional, modified, and/or alternative noise attenuation measure(s) 
and/or operational change(s) included in the approved SFV plan that is 
expected to reduce sound levels to the modeled distances and must 
implement that measure for the next pile of the same type and pile 
driving method that is installed (e.g., if triggered by SFV results for 
a monopile installed with vibratory pile driving followed by impact 
pile driving, for the next monopile with vibratory pile driving 
followed by impact pile driving). Attenuation measures that could 
reduce sound levels to the modeled distances include but are not 
limited to adding a noise attenuation device, adjusting hammer 
operations, and adjusting or otherwise modifying the noise mitigation 
system. LOA Holder must provide written notification to NMFS Office of 
Protected Resources of the changes implemented within 24 hours of their 
implementation. Following installation of a pile with additional, 
alternative, or modified noise attenuation measures/operational changes 
if Thorough SFV results indicate that all isopleths of concern are 
within distances to isopleths of concern modeled assuming 10 dB 
attenuation, Thorough SFV must be conducted on two additional piles of 
the same type/installation method (for a total of at least three piles 
with consistent noise attenuation measures). If the Thorough SFV 
results from all three of those piles are within the distances to 
isopleths of concern modeled assuming 10 dB attenuation, then LOA 
Holder must continue to implement the approved additional, alternative, 
or modified noise attenuation measures/operational changes. LOA Holder 
can request concurrence from NMFS Office of Protected Resources to 
return to the original clearance and shutdown zones;
    (v) In addition to this SFV monitoring, which will follow a 
specific comprehensive methodology described in the SFV Plan required 
in Sec.  217.325(c)(8), LOA Holder also must conduct Abbreviated SFV 
for all other foundations, using at least one acoustic recorder for 
every foundation for which thorough SFV monitoring is not conducted. 
Abbreviated SFV consists of: SFV measurements made at a single acoustic 
recorder, consisting of a near-bottom and mid-water hydrophone, at 
approximately 750 m from the pile, in the direction of lowest modeled 
transmission loss, to record sounds throughout the duration of all pile 
driving (inclusive of relief drilling) of each foundation. If measured 
levels from Abbreviated SFV for any pile are greater than expected 
levels, LOA Holder must evaluate the available information from the 
pile installation to determine if there is an identifiable cause of the 
exceedance (i.e., a failure of the noise attenuation system), identify 
and implement corrective action, and report this information to NMFS 
Office of Protected Resources within 48 hours of completion of the 
installation of the pile (inclusive of all pile driving and drilling), 
during which the exceedance occurred. If LOA Holder can demonstrate 
that the exceedance was the result of a failure of the noise 
attenuation system (e.g., loss of a generator supporting a bubble 
curtain such that one bubble curtain failed during pile driving) that 
can be remedied in a way that returns the noise attenuation system to 
pre-failure conditions, LOA Holder can request concurrence from NMFS 
Office of Protected Resources to proceed without Thorough SFV 
monitoring that would otherwise be required within 72 hours. LOA Holder 
is required to remedy any such failure of the noise attenuation system 
prior to carrying out any additional pile driving or drilling.
    (vi) Thorough 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 zones assuming 10 dB attenuation. At least 
one additional measurement at an azimuth 90 degrees from the array at 
750 m must be made. At each location, there must be a near bottom and 
mid-water column hydrophone (measurement system).
    (vii) The recordings must be continuous throughout the duration of 
all pile driving and drilling of each foundation.
    (viii) The SFV measurement systems must have a sensitivity 
appropriate for the expected sound levels from pile driving and 
drilling 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 and so that the broadband received level of all pile 
driving and drilling activities 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.
    (ix) 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.
    (x) LOA Holder must be prepared with additional equipment 
(hydrophones, recording devices, hydrophone calibrators, cables, 
batteries, etc.), which exceeds the amount of equipment necessary to 
perform the measurements, such that technical issues can be mitigated 
before measurement.
    (xi) LOA Holder must submit interim reports within 48 hours after 
each foundation is measured with Thorough SFV (Sec.  217.325(10) for 
interim and final reporting requirements).
    (xii) If any of the interim Thorough SFV reports submitted indicate 
that SFV measurements exceed the modeled distances to Level A 
harassment and Level B harassment thresholds assuming 10-dB 
attenuation, then LOA Holder 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 10dB attenuation. LOA Holder must also increase 
clearance and shutdown zone sizes to

[[Page 52308]]

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; LOA Holder must 
optimize the noise attenuation systems (e.g., ensure hose maintenance, 
pressure testing, etc.) to, at least, meet noise levels modeled, 
assuming 10-dB attenuation, within three piles or else foundation 
installation activities must cease until NMFS and LOA Holder can 
evaluate the situation and ensure future piles will not exceed noise 
levels modeled assuming 10-dB attenuation.
    (xiii) If SFV measurements collected during installation of 
foundation piles indicate ranges to the isopleths, corresponding to 
Level A harassment and Level B harassment thresholds, are greater than 
the ranges predicted by modeling (assuming 10 dB attenuation), LOA 
Holder must implement additional noise mitigation measures prior to 
installing the next foundation. Additional acoustic measurements must 
be taken after each modification.
    (xiv) If, after additional measurements conducted pursuant to 
requirements of paragraph (c)(15)(i) and (ii) of this section, acoustic 
measurements indicate that ranges to isopleths corresponding to the 
Level A harassment and Level B harassment thresholds are less than the 
ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder 
may request to NMFS Office of Protected Resources a modification of the 
clearance and shutdown zones. For NMFS Office of Protected Resources to 
consider a modification request for reduced zone sizes, LOA Holder must 
have conducted SFV measurements on an additional three foundations and 
ensure that subsequent foundations would be installed under conditions 
that are predicted to produce smaller harassment zones than those 
modeled assuming 10-dB of attenuation.
    (xiv) LOA Holder must conduct SFV measurements during turbine 
operations to estimate turbine operational source levels and 
transmission loss rates, in accordance with a NMFS-approved SFV Plan.
    (d) UXO/MEC detonations. The following requirements apply to 
Unexploded Ordnances and Munitions and Explosives of Concern (UXO/MEC) 
detonations:
    (1) Upon encountering a UXO/MEC, LOA Holder must only resort to 
high-order removal (i.e., detonation) if all other means of removal are 
impracticable (i.e., As Low As Reasonably Practicable (ALARP) risk 
mitigation procedure)) and this determination must be documented and 
submitted to NMFS;
    (i) LOA Holder may detonate a maximum of 10 UXO/MECs, of varying 
sizes but no larger than 1,000 pounds (lbs; 454 kilograms (kg)) charge 
weight (i.e., E12), over the effective period of this rulemaking and 
LOA(s);
    (ii) LOA Holder must provide NMFS Office of Protected Resources 
with notification of planned UXO/MEC detonation as soon as possible but 
at least 48 hours prior to the planned detonation, unless this 48-hour 
notification would create delays to the detonation that would result in 
imminent risk to human life or safety.
    (2) UXO/MEC detonations must not occur from December 1 through May 
31, annually; however, LOA Holder may detonate a UXO/MEC in December or 
May with NMFS' approval on a case-by-case basis;
    (3) UXO/MEC detonations must only occur during daylight hours (1 
hour after civil sunrise through 1.5 hours prior to civil sunset);
    (4) No more than one detonation can occur within a 24-hour period;
    (5) LOA Holder must deploy dual noise abatement systems during all 
UXO/MEC detonations and comply with the following requirements related 
to noise abatement:
    (i) A single bubble curtain must not be used;
    (ii) A big double bubble curtain may be used without being paired 
with another noise attenuation device;
    (iii) The bubble curtain(s) must distribute air bubbles using an 
air flow rate of at least 0.5 m\3\/(min*m). The bubble curtain(s) must 
surround 100 percent of the UXO/MEC detonation 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 noise attenuation 
performance of the bubble curtain(s) is achieved;
    (iv) 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;
    (v) No parts of the ring or other objects may prevent full seafloor 
contact;
    (vi) Construction contractors must train personnel in the proper 
balancing of airflow to the ring. Construction contractors must submit 
an inspection/performance report for approval by LOA Holder within 72 
hours following the performance test. LOA Holder must then submit that 
report to NMFS Office of Protected Resources;
    (vii) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (d)(5) must occur prior to UXO/MEC 
detonations. If LOA Holder uses a noise mitigation device in addition 
to the bubble curtain, LOA Holder must maintain similar quality control 
measures as described in this paragraph (d)(5); and
    (viii) LOA Holder must inspect and carry out appropriate 
maintenance on the noise attenuation system prior to every foundation 
installation event (i.e., for each pile driven foundation) and UXO/MEC 
detonation and prepare and submit a NAS inspection/performance report 
to NMFS Office of Protected Resources. For activities which Thorough 
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.
    (6) LOA Holder must conduct SFV during all UXO/MEC detonations at a 
minimum of three locations (at two water depths at each location) from 
each detonation in a direction toward deeper water in accordance with 
the following requirements:
    (i) LOA Holder must empirically determine source levels (peak and 
cumulative sound exposure level), the ranges to the isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds in meters, and the transmission loss coefficient(s). LOA 
Holder may estimate ranges to the Level A harassment and Level B 
harassment isopleths by extrapolating from in-situ measurements 
conducted at several distances from the detonation location monitored.
    (ii) The SFV measurement systems must have a sensitivity 
appropriate for the expected sound levels from detonations received at 
the nominal ranges throughout the detonation; the frequency range of 
the SFV measurement systems must cover the range of at least 20 Hz to 
20 kHz; and the SFV measurement systems will be designed to have 
omnidirectional sensitivity and will be designed so that the predicted 
broadband received level of all UXO/MEC detonations exceeds the system 
noise floor by at least 10 dB.

[[Page 52309]]

The dynamic range of the SFV measurement systems must be sufficient 
such that at each location, the signals avoid poor signal-to-noise 
ratios for low amplitude signals and the signals avoid clipping, 
nonlinearity, and saturation for high amplitude signals.
    (iii) All hydrophones used in SFV measurements systems are required 
to have undergone a full system, traceable laboratory calibration 
conforming to 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.
    (iv) LOA Holder must be prepared with additional equipment 
(hydrophones, recording devices, hydrophone calibrators, cables, 
batteries, etc.), which exceeds the amount of equipment necessary to 
perform the measurements, such that technical issues can be mitigated 
before measurement.
    (v) LOA Holder must submit interim reports within 48 hours after 
each UXO/MEC detonation is measured (see Sec.  217.325(f)(10) for 
interim and final reporting requirements).
    (vi) If SFV measurements collected during UXO/MEC detonation 
indicate ranges to the isopleths, corresponding to Level A harassment 
and Level B harassment thresholds, are greater than the ranges 
predicted by modeling (assuming 10 dB attenuation), LOA Holder must 
implement additional noise mitigation measures prior to the next UXO/
MEC detonation. Additional acoustic measurements must be taken after 
each modification. LOA Holder must also increase the clearance zone 
size to reflect the results of SFV in collaboration with NMFS Office of 
Protected Resources. Use of the expanded clearance zone must continue 
for all additional detonations until LOA Holder requests and receives 
concurrence from NMFS Office of Protected Resources to revert to the 
original clearance zone. LOA Holder must provide written notification 
to NMFS Office of Protected Resources of the changes planned for the 
next detonation within 24 hours of implementation.
    (vii) LOA Holder must optimize the noise attenuation systems (e.g., 
ensure hose maintenance, pressure testing, etc.) to, at least, meet 
noise levels modeled, assuming 10-dB attenuation, UXO/MEC detonation 
activities must cease until NMFS and LOA Holder can evaluate the 
situation and ensure future detonations will not exceed noise levels 
modeled assuming 10-dB attenuation.
    (viii) LOA Holder must identify one or more additional, modified, 
and/or alternative noise attenuation measures or other change to the 
detonation plans (included in the SFV Plan) that is expected to reduce 
sound levels to the modeled distances. These measures must be 
implemented for the next detonation.
    (7) LOA Holder must establish and implement clearance zones for 
UXO/MEC detonation using both visual and acoustic monitoring, as 
described in the LOA;
    (8) At least six on-duty PSOs must be actively observing marine 
mammals before, during, and after any UXO/MEC detonation. At least 
three on-duty PSOs must be stationed and observing on a vessel as close 
as safely possible to the detonation site and, in addition, at least 
three on-duty PSOs must be stationed on an additional PSO-dedicated 
vessel or aerial platform. Concurrently, at least one acoustic 
monitoring PSO (i.e., passive acoustic monitoring (PAM) operator) must 
be actively monitoring for marine mammals with PAM before, during, and 
after detonation;
    (i) Clearance zones must be increased to reflect the results of 
SFV. For every 1,500 m that a clearance zone is expanded, additional 
PSOs must be deployed from additional platforms/vessels to ensure 
adequate and complete monitoring of the expanded zone.
    (ii) [Reserved]
    (9) If the clearance zone is larger than 2 km (based on charge 
weight), LOA Holder must deploy an additional PSO-dedicated vessel or 
aircraft with at least three on-duty PSOs stationed on it and actively 
observing for marine mammals. If the clearance zone is larger than 5 km 
(based on charge weight), an aerial platform must be used unless LOA 
Holder is unable to secure an aerial platform(s) with the appropriately 
trained pilots and PSOs. In such a case, the LOA Holder must submit an 
alternative monitoring plan at least 90 days before any UXO/MEC 
detonation that would describe how they would effectively monitor 
clearance zones beyond 5 km, including an explanation of additional 
vessels/platforms and PSO deployments. This plan must be approved by 
NMFS before any UXO/MEC detonation may occur;
    (i) If an aircraft is used, two on-duty 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.
    (10) At least one PAM operator must review data from at least 24 
hours prior to a detonation and actively monitor hydrophones for 60 
minutes prior to detonation. All clearance zones must be acoustically 
confirmed to be free of marine mammals for 60 minutes prior to 
commencing a detonation. PAM operators will continue to monitor for 
marine mammals at least 30 minutes after a detonation;
    (11) All clearance zones must be visually confirmed to be free of 
marine mammals for 30 minutes before a detonation can occur. All on-
duty PSOs must also maintain watch for 30 minutes after the detonation 
event;
    (12) If a marine mammal is observed entering or within the relevant 
clearance zone prior to the initiation of a detonation, detonation must 
be delayed and must not begin until either the marine mammal(s) has 
voluntarily left the specific clearance zones and have been visually 
and acoustically confirmed beyond that clearance zone, or, when 
specific time periods have elapsed with no further sightings or 
acoustic detections. The specific time periods are 15 minutes for small 
odontocetes and pinnipeds and 30 minutes for all other marine mammal 
species;
    (13) For North Atlantic right whales, any visual observation or 
acoustic detection must trigger a delay to the detonation of a UXO/MEC. 
Any large whale sighting by a PSO or detected by a PAM operator that 
cannot be identified by species must be treated as if it were a North 
Atlantic right whale; and
    (14) A pressure transducer must be used to monitor pressure levels 
during all UXO/MEC detonations.
    (e) HRG surveys. The following requirements apply to HRG surveys 
operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers):
    (1) SBPs (hereinafter referred to as ``acoustic sources'') must be 
deactivated when not acquiring data or preparing to acquire data, 
except as necessary for testing. Acoustic sources must be used at the 
lowest practicable source level to meet the survey objective, when in 
use, and must be turned off when they are not necessary for the survey;
    (2) LOA Holder is required to have at least one PSO on active duty 
per HRG vessel during HRG surveys that are conducted during daylight 
hours (i.e.,

[[Page 52310]]

from 30 minutes prior to civil sunrise through 30 minutes following 
civil sunset) and at least two PSOs on active duty per vessel during 
HRG surveys that are conducted during nighttime hours;
    (3) LOA Holder is required to ramp-up SBPs prior to commencing full 
power, unless the equipment operates on a binary on/off switch, and 
ensure visual clearance zones are fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and clear of marine mammals, as determined 
by the Lead PSO, for at least 30 minutes immediately prior to the 
initiation of survey activities using acoustic sources specified in the 
LOA;
    (4) Ramp-ups must be scheduled so as to minimize the time spent 
with the source activated. Prior to a ramp-up procedure starting or 
activating acoustic sources, the acoustic source operator (operator) 
must notify a designated PSO of the planned start of ramp-up as agreed 
upon with the Lead PSO. The notification time should not be less than 
60 minutes prior to the planned ramp-up or activation in order to allow 
the PSOs time to monitor the clearance zone(s) for 30 minutes prior to 
the initiation of ramp-up or activation (pre-start clearance). During 
this 30-minute pre-start clearance period, the entire applicable 
clearance zones must be visible. Ramp-up may occur at times of poor 
visibility, including nighttime, only if appropriate visual monitoring 
has occurred with no detections of marine mammals in the 30 minutes 
prior to beginning ramp-up;
    (i) A PSO conducting pre-start clearance observations must be 
notified again immediately prior to reinitiating ramp-up procedures and 
the operator must receive confirmation from the PSO to proceed.
    (ii) [Reserved]
    (5) Prior to starting the survey and after receiving confirmation 
from the PSOs that the clearance zone is clear of any marine mammals, 
LOA Holder is required to ramp-up acoustic sources to half power for 5 
minutes prior to commencing full power, unless the source operates on a 
binary on/off switch (in which case ramp-up is not required). LOA 
Holder must also ensure visual clearance zones are fully visible (e.g., 
not obscured by darkness, rain, fog, etc.) and clear of marine mammals, 
as determined by the Lead PSO, for at least 30 minutes immediately 
prior to the initiation of survey activities using acoustic sources; 
Ramp-up and activation must be delayed if a marine mammal(s) enters its 
respective shutdown zone. Ramp-up and activation may only be 
reinitiated if the animal(s) has been observed exiting its respective 
shutdown zone or until 15 minutes for small odontocetes and pinnipeds, 
and 30 minutes for all other species, has elapsed with no further 
sightings;
    (6) LOA Holder must establish and implement clearance and shutdown 
zones for HRG surveys using visual monitoring; LOA Holder must 
implement a 30-minute clearance period of the clearance zones 
immediately prior to the commencing of the survey or when there is more 
than a 30 minute break in survey activities or PSO monitoring. A 
clearance period is a period when no marine mammals are detected in the 
relevant zone;
    (7) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up or acoustic surveys may not begin until 
the animal(s) has been observed voluntarily exiting its respective 
clearance zone or until a specific time period has elapsed with no 
further sighting. The specific time period is 15 minutes for small 
odontocetes and pinnipeds, and 30 minutes for all other species;
    (8) Any large whale sighted by a PSO within 1 km of the acoustic 
source(s) that cannot be identified by species must be treated as if it 
were a North Atlantic right whale and LOA Holder must apply the 
mitigation measure applicable to this species;
    (9) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(infrared (IR)/thermal camera), and the Lead PSO has determined that 
the clearance zones are clear of marine mammals, survey operations may 
commence (i.e., no delay is required) despite periods of inclement 
weather and/or loss of daylight.
    (10) Once the survey has commenced, LOA Holder must shut down 
acoustic sources if a marine mammal enters a respective shutdown zone, 
except in cases when the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations may continue (i.e., 
no shutdown is required) so long as no marine mammals have been 
detected. The shutdown requirement does not apply to small delphinids 
of the following genera: Delphinus, Stenella, Lagenorhynchus, and 
Tursiops. If there is uncertainty regarding the identification of a 
marine mammal species (i.e., whether the observed marine mammal belongs 
to one of the delphinid genera for which shutdown is waived), the PSOs 
must use their best professional judgment in making the decision to 
call for a shutdown. Shutdown is required if a delphinid that belongs 
to a genus other than those specified in this paragraph (e)(10) is 
detected in the shutdown zone;
    (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 15 minutes for small odontocetes and 
pinnipeds and 30 minutes for all other marine mammals have elapsed with 
no further sighting;
    (12) LOA Holder must immediately shutdown any acoustic source if a 
marine mammal is sighted entering or within its respective shutdown 
zones. If there is uncertainty regarding the identification of a marine 
mammal species (i.e., whether the observed marine mammal belongs to one 
of the delphinid genera for which shutdown is waived), the PSOs must 
use their best professional judgment in making the decision to call for 
a shutdown. Shutdown is required if a delphinid that belongs to a genus 
other than those specified in paragraph (e)(10) of this section is 
detected in the shutdown zone;
    (13) If an acoustic source is shut down for a period longer than 30 
minutes, all clearance and ramp-up procedures must be initiated. If an 
acoustic source is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, acoustic sources may 
be activated again without ramp-up only if PSOs have maintained 
constant observation and no additional detections of any marine mammal 
occurred within the respective shutdown zones; and
    (14) If multiple HRG vessels are operating concurrently, any 
observations of marine mammals must be communicated to PSOs on all 
nearby survey vessels.
    (f) Fisheries monitoring surveys. The following measures apply to 
fishery monitoring surveys:
    (1) All captains and crew conducting fishery surveys must be 
trained in marine mammal detection and identification. Marine mammal 
monitoring will be conducted by the captain and/or a member of the 
scientific crew before within 1 nautical mile (nmi) (1.85 km; 1.2 mi) 
and 15 minutes prior to deploying gear), during, and for 15 minutes 
after haul back;
    (2) Survey gear will 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 nmi (1.85 km; 1.2 mi) of 
the sampling station;

[[Page 52311]]

    (3) LOA Holder and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must implement the following 
``move-on'' rule: If marine mammals are sighted within 1 nmi (1.2 mi) 
of the planned location and 15 minutes before gear deployment, then LOA 
Holder and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains, as appropriate, must move the vessel away 
from the marine mammal to a different section of the sampling area. If, 
after moving on, marine mammals are still visible from the vessel, LOA 
Holder and its cooperating institutions, contracted vessels, or 
commercially-hired captains must move again or skip the station;
    (4) 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;
    (5) LOA Holder must maintain visual marine mammal monitoring effort 
during the entire period of time that gear is in the water (i.e., 
throughout gear deployment, fishing, and retrieval). If marine mammals 
are sighted before the gear is fully removed from the water, LOA Holder 
must take the most appropriate action to avoid marine mammal 
interaction;
    (6) All fisheries monitoring gear must be fully cleaned and 
repaired (if damaged) before each use/deployment;
    (7) LOA Holder's fixed gear must comply with the Atlantic Large 
Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries 
monitoring surveys;
    (8) Trawl tows will be limited to a maximum of a 20-minute trawl 
time and must not exceed 3.0 kn (3.45 mph);
    (9) All gear must be emptied as close to the deck/sorting area and 
as quickly as possible after retrieval;
    (10) During trawl surveys, vessel crew must open the codend of the 
trawl net close to the deck in order to avoid injury to animals that 
may be caught in the gear;
    (11) During any survey that uses vertical lines, buoy lines will be 
weighted and will not float at the surface of the water and all 
groundlines will consist of sinking line. All groundlines must be 
composed entirely of sinking line. Buoy lines must utilize weak links. 
Weak links must break cleanly leaving behind the bitter end of the 
line. The bitter end of the line must be free of any knots when the 
weak link breaks. Splices are not considered to be knots. The 
attachment of buoys, toggles, or other floatation devices to 
groundlines is prohibited;
    (12) All in-water survey gear, including buoys, must be properly 
labeled with the scientific permit number or identification as LOA 
Holder-related 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 GARFO Protected Resources Division;
    (13) All survey gear must be removed from the water whenever not in 
active survey use (i.e., no wet storage);
    (14) All reasonable efforts, that do not compromise human safety, 
must be undertaken to recover gear; and
    (15) All lost gear associated with the fishery surveys must be 
reported to NOAA GARFO Protected Resources Division 
([email protected]) 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.  217.325  Monitoring and reporting requirements.

    LOA Holder must implement the following monitoring and reporting 
requirements when conducting the specified activities:
    (a) Protected species observer (PSO) and passive acoustic 
monitoring (PAM) operator qualifications. LOA Holder must implement the 
following measures applicable to PSOs and PAM operators:
    (1) LOA Holder must use independent, NMFS-approved PSOs and PAM 
operators meaning that the PSOs and PAM operators must be employed by a 
third-party observer provider, must have no tasks other than to conduct 
observational effort, collect data, and communicate with and instruct 
relevant crew with regard to the presence of protected species and 
mitigation requirements;
    (2) All PSOs and PAM operators must have successfully attained a 
bachelor's degree from an accredited college or university with a major 
in one of the natural sciences, a minimum of 30 semester hours or 
equivalent in the biological sciences, and at least one undergraduate 
course in math or statistics. The educational requirements may be 
waived if the PSO or PAM operator has acquired the relevant skills 
through a suitable amount of alternate experience. Requests for such a 
waiver must be submitted to NMFS Office of Protected Resources and must 
include written justification containing alternative experience. 
Alternate experience that may be considered includes but is not limited 
to: previous work experience conducting academic, commercial, or 
government sponsored marine mammal visual and/or acoustic surveys; or 
previous work experience as a PSO/PAM operator. All PSO's and PAM 
operators should demonstrate good standing and consistently good 
performance of all assigned duties;
    (3) All PSOs and PAM operators must successfully complete a 
required training course within the last 5 years, including obtaining a 
certificate of course completion;
    (4) 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;
    (5) PSOs and PAM operators are responsible for obtaining NMFS' 
approval. NMFS may approve PSOs and PAM operators as conditional or 
unconditional. A conditionally-approved PSO or PAM operator may be one 
who has completed training in the last 5 years but has not yet attained 
the requisite field experience. An unconditionally approved PSO or PAM 
operator is one who has completed training within the last 5 years and 
attained the necessary experience (i.e., demonstrate experience with 
monitoring for marine mammals at clearance and shutdown zone sizes 
similar to those produced during the respective activity). Lead PSO(s) 
and Lead PAM operator(s) must be unconditionally approved and have a 
minimum of 90 days in a northwestern Atlantic Ocean offshore 
environment performing the role (either visual or acoustic), with the 
conclusion of the most recent relevant experience not

[[Page 52312]]

more than 18 months previous. A conditionally approved PSO or PAM 
operator must be paired with an unconditionally approved PSO or PAM 
operator;
    (i) PSOs for HRG surveys may be unconditionally or conditionally 
approved. PSOs and PAM operators for foundation installation and UXO/
MEC detonation must be unconditionally approved;
    (ii) LOA Holder must submit NMFS previously approved PSOs and PAM 
operators to NMFS Office of Protected Resources for review and 
confirmation of their approval for specific roles at least 30 days 
prior to commencement of the activities requiring PSOs/PAM operators or 
15 days prior to when new PSOs/PAM operators are required after 
activities have commenced;
    (iii) For prospective PSOs and PAM operators not previously 
approved, or for PSOs and PAM operators whose approval is not current, 
LOA Holder must submit resumes for approval at least 60 days prior to 
PSO and PAM operator use. Resumes must include information related to 
relevant education, experience, and training, including dates, 
duration, location, and description of prior PSO or PAM operator 
experience. Resumes must be accompanied by relevant documentation of 
successful completion of necessary training and include which specific 
roles and activities the PSOs/PAM operators are being requested for. 
PAM operator experience must also include the information described in 
paragraph (a)(5)(iv) of this section;
    (iv) PAM operators are responsible for obtaining NMFS approval. To 
be approved as a PAM operator, the person must meet the following 
qualifications: The PAM operator must demonstrate that they have prior 
large whale PAM experience with real-time acoustic detection systems 
and/or have completed specialized training for operating PAM systems 
that will be used for the Project; PAM operators must demonstrate that 
they are able to detect and identify Atlantic Ocean marine mammals 
sounds, in particular: North Atlantic right whale sounds, humpback 
whale sounds, and that they are able to deconflict humpback whale 
sounds from similar North Atlantic right whale sounds, and other co-
occurring species' sounds in the area including sperm whales; must be 
able to distinguish between whether a marine mammal or other species 
sound is detected, possibly detected, or not detected and similar 
terminology must be used across companies/projects; where localization 
of sounds or deriving bearings and distance are possible, the PAM 
operators must have demonstrated experience in the localization of 
sounds or deriving bearings and distance; PAM operators must be 
independent observers (i.e., not construction personnel); PAM operators 
must demonstrate experience with relevant acoustic software and 
equipment; PAM operators must have the qualifications and relevant 
experience/training to safely deploy and retrieve equipment and program 
the software, as necessary; PAM operators must be able to test software 
and hardware functionality prior to operation; and PAM operators must 
have evaluated their acoustic detection software using the PAM Atlantic 
baleen whale annotated data set available at National Centers for 
Environmental Information (NCEI) and provide evaluation/performance 
metric;
    (6) All PSOs must be trained in northwestern Atlantic Ocean marine 
mammal identification and behaviors and must be able to conduct field 
observations and collect data according to assigned protocols. 
Additionally, PSOs must have the ability to work with all required and 
relevant software and equipment necessary during observations (as 
described in paragraphs (b)(5) and (6) of this section);
    (7) At least one on-duty PSO and PAM operator, where applicable, 
for each activity (i.e., foundation installation, UXO/MEC detonation 
activities, and HRG surveys) must be designated as the Lead PSO. The 
Lead PSO must be unconditionally approved; and
    (8) 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 will be tallied 
cumulatively.
    (b) General PSO and PAM operator requirements. The following 
measures apply to PSOs and PAM operators and must be implemented by LOA 
Holder:
    (1) PSOs must monitor for marine mammals prior to, during, and 
following pile driving, drilling, UXO/MEC detonation activities, and 
HRG surveys that use sub- bottom profilers (with specific monitoring 
durations and needs described in paragraphs (c) through (f) of this 
section, respectively). Monitoring must be done while free from 
distractions and in a consistent, systematic, and diligent manner;
    (2) PAM operator(s) must acoustically monitor for marine mammals 
prior to, during, and following all pile driving, drilling, and UXO/MEC 
detonation activities. 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 
available wherever they are stationed) and be in real-time 
communication with PSOs and transiting vessel captains;
    (3) All PSOs must be located at the best vantage point(s) on any 
platform, as determined by the Lead PSO, in order to obtain 360-degree 
visual coverage of the entire clearance and shutdown zones around the 
activity area, and as much of the Level B harassment zone as possible, 
PAM operators may be located on a vessel or remotely on-shore. The PAM 
operator(s) must assist PSOs in ensuring full coverage of the clearance 
and shutdown zones;
    (4) All on-duty visual PSOs must remain in real-time contact with 
the on-duty PAM operator(s). PAM operators must immediately communicate 
all acoustic detections of marine mammals to PSOs, including any 
determination regarding species identification, distance, and bearing 
(where relevant) relative to the pile being driven and the degree of 
confidence (e.g., detected, possibly detected, not detected) in the 
determination. All on-duty Lead PSOs and PAM operator(s) must remain in 
contact with the on-duty construction personnel responsible for 
implementing mitigations (e.g., delay to pile driving or UXO/MEC 
detonation) to ensure communication on marine mammal observations can 
easily, quickly, and consistently occur between all on-duty PSOs, PAM 
operator(s), and on-water Project personnel.
    (i) The on-duty PAM operator(s) must inform the on-duty Lead PSO(s) 
of animal detections approaching or within applicable ranges of 
interest to the activity occurring via the data collection software 
system, (e.g., Mysticetus or similar system) who must be responsible 
for requesting that the designated crewmember implement the necessary 
mitigation procedures (i.e., delay, shutdown); and
    (ii) Any visual observations of marine mammals by any Project 
personnel must be communicated immediately to on-duty PSOs and vessel 
captains associated with other Project vessels to increase situational 
awareness.
    (5) PSOs must use high magnification (25x) binoculars, standard 
handheld (7x) binoculars, and the naked eye to search continuously for 
marine mammals. During pile driving and drilling, at least the PSOs on 
the pile driving and drilling platform(s) and any dedicated PSO vessel 
that may be used 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

[[Page 52313]]

point that provides for optimal sea surface observation and PSO safety. 
A minimum of three on-duty PSOs must be active on a dedicated PSO 
vessel. PAM operators must have the appropriate equipment (i.e., a 
computer station equipped with a data collection software system 
available wherever they are stationed) in accordance with a NMFS-
approved PAM Plan;
    (6) During all acoustic monitoring periods during the Project, PAM 
operators must use PAM systems approved by NMFS;
    (7) 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 clearance and 
shutdown zones as approved by NMFS;
    (8) PSOs and PAM operators must not exceed 4 consecutive watch 
hours on duty at any time, must have a 2-hour (minimum) break between 
watches, and must not exceed a combined watch schedule of more than 12 
hours in a 24-hour period;
    (9) Any PSO or PAM operator has the authority to call for a delay 
or shutdown of project activities;
    (10) PSOs must remain in real-time contact with the PAM operators 
and construction personnel responsible for implementing mitigation 
(e.g., delay to pile driving or UXO/MEC detonation) to ensure 
communication on marine mammal observations can easily, quickly, and 
consistently occur between all on-duty PSOs, PAM operator(s), and on-
water Project personnel; and
    (11) LOA Holder is 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 Sightings Advisory 
System, consulting of the WhaleAlert app, and monitoring of the Coast 
Guard's VHF Channel 16 throughout the day to receive notifications of 
any sightings and information associated with any DMA, to plan 
construction activities and vessel routes, if practicable, to minimize 
the potential for co-occurrence with North Atlantic right whales.
    (c) PSO and PAM operator requirements during WTG and ESP foundation 
installation. The following measures apply to PSOs and PAM operators 
during WTG and ESP foundation installation and must be implemented by 
LOA Holder:
    (1) PSOs and PAM operator(s) must monitor for marine mammals 60 
minutes prior to, during, and 30 minutes following all pile-driving and 
drilling. If PSOs cannot visually monitor the minimum visibility zone 
prior to pile driving and drilling at all times using the equipment 
described in paragraphs (b)(5) and (7) of this section, pile driving 
and drilling operations must not commence or must shutdown if they are 
currently active;
    (2) All PSOs and PAM operators must begin monitoring 60 minutes 
prior to pile driving and drilling, during, and for 30 minutes after 
the activity. Pile driving and drilling must only commence when the 
minimum visibility zone is fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and the clearance zones are clear of marine 
mammals for at least 30 minutes, as determined by the Lead PSO, 
immediately prior to the initiation of pile driving or drilling. PAM 
operators must assist the visual PSOs in monitoring by conducting PAM 
activities 60 minutes prior to any pile driving or drilling, during, 
and after for 30 minutes for the appropriate size PAM clearance zone 
(dependent on season). The entire minimum visibility zone must be clear 
for at least 30 minutes, with no marine mammal detections within the 
visual or PAM clearance zones prior to the start of pile driving or 
drilling;
    (3) LOA Holder must conduct PAM for at least 24 hours immediately 
prior to pile driving and drilling activities, The PAM operator must 
review all detections from the previous 24-hour period immediately 
prior to pile driving or drilling.
    (4) During use of any real-time PAM system, at least one PAM 
operator must be designated to monitor each system by viewing data or 
data products that would be streamed in real-time or in near real-time 
to a computer workstation and monitor;
    (5) The PAM operator must inform the Lead PSO(s) on duty of animal 
detections approaching or within applicable ranges of interest to the 
pile driving activity via the data collection software system (i.e., 
Mysticetus or similar system) who will be responsible for requesting 
that the designated crewmember implement the necessary mitigation 
procedures (i.e., delay or shutdown);
    (6) All monitoring and reporting measures required for or 
applicable to jacket foundations are required for bottom-frame 
foundations that utilize pile foundations;
    (7) LOA Holder must prepare and submit a Marine Mammal Monitoring 
Plan to NMFS Office of Protected Resources for review and approval at 
least 180 days before the planned start of any pile driving or drilling 
and abide by the plan if approved. LOA Holder must obtain both NMFS 
Office of Protected Resources and NMFS Greater Atlantic Regional 
Fisheries Office Protected Resources Division's concurrence with this 
plan prior to the start of any pile driving or drilling. The plan must 
include final foundation project design (e.g., number and type of 
piles, hammer type, noise abatement systems, anticipated start date, 
etc.) and all information related to PAM and PSO monitoring protocols 
for foundation installation activities. No foundation pile installation 
can occur without NMFS' approval of the plan;
    (8) LOA Holder must submit an SFV plan to NMFS Office of Protected 
Resources for review and approval at least 180 days prior to planned 
start of foundation installation activities and abide by the plan if 
approved. At minimum, the SFV Plan must describe how LOA Holder would 
ensure that the required foundation installation sites selected for SFV 
measurements are representative of the rest of the installation sites 
such that future pile installation events are anticipated to produce 
similar sound levels to those piles measured. In the case that these 
sites/scenarios are not determined to be representative of all other 
pile installation sites, LOA Holder must include information in the SFV 
Plan on how additional sites/scenarios would be selected for SFV 
measurements. This SFV Plan must also 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 noise attenuation methodology would be evaluated 
based on the results. SFV for pile driving and drilling must not occur 
until NMFS approves the SFV Plan for this activity;
    (9) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM 
Plan) to NMFS Office of Protected Resources for review and approval at 
least 180 days prior to the planned start of foundation installation 
activities and abide by the plan if approved. The PAM Plan must include 
a description of all proposed PAM equipment, address how the proposed 
passive acoustic monitoring must follow standardized measurement, 
processing methods, reporting metrics, and metadata standards for 
offshore wind. The plan must describe all proposed PAM equipment, 
procedures, and protocols including proof that vocalizing North 
Atlantic right whales will be detected within the PAM Monitoring Zone. 
No pile installation can occur if LOA Holder's PAM Plan does not 
receive approval from NMFS Office of Protected Resources and NMFS

[[Page 52314]]

GARFO Protected Resources Division; and
    (10) LOA Holder must submit a Nighttime Monitoring Plan for 
foundation installation if LOA Holder intends to pile drive or drill 
outside the daily restriction in Sec.  217.324(c). This plan must be 
submitted to NMFS Office of Protected Resources at least 180 calendar 
days before foundation installation is planned to begin. This plan(s) 
must contain a thorough description of how LOA Holder will monitor 
foundation installation activities (drilling, vibratory and impact pile 
driving) and at night, including proof of the efficacy of monitoring 
devices (e.g., mounted thermal/infrared camera systems, hand-held or 
wearable 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 and sea turtles 
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' 
satisfaction that marine mammals can reliably and effectively be 
detected within the clearance and shutdown zones for monopiles and 
jacket foundations before and during foundation installation (drilling, 
vibratory and impact pile driving), nighttime foundation installation 
must not occur; the only exception would be if safety necessitates 
continuing pile installation after dark for a foundation that was 
initiated 1.5 hours prior to civil sunset, in which case the Low 
Visibility components of the Monitoring Plan would be implemented.
    (d) PSO requirements during UXO/MEC detonations. The following 
measures apply to PSOs UXO/MEC detonations and must be implemented by 
LOA Holder:
    (1) All on-duty visual PSOs must remain in contact with the on-duty 
PAM operator, who would monitor the PAM systems for acoustic detections 
of marine mammals in the area, regarding any animal detection that 
might be approaching or found within the applicable zones no matter 
where the PAM operator is stationed (e.g., onshore or on a vessel);
    (2) If PSOs cannot visually monitor the clearance zone at all times 
using the equipment described in paragraphs (b)(5) and (7) of this 
section; UXO/MEC operations must not commence or must shutdown if they 
are currently active;
    (3) All PSOs must begin monitoring 60 minutes prior to UXO/MEC 
detonation, during, and for 30 minutes after the activity. UXO/MEC 
detonation must only commence when the minimum visibility zone is fully 
visible (e.g., not obscured by darkness, rain, fog, etc.) and the 
clearance zones are clear of marine mammals for at least 30 minutes, as 
determined by the Lead PSO, immediately prior to the initiation of 
detonation. PAM operators must assist the visual PSOs in monitoring by 
conducting PAM activities 60 minutes prior to any UXO/MEC detonation, 
during, and after for 30 minutes for the appropriate size PAM clearance 
zone. The entire clearance zone must be clear for at least 30 minutes, 
with no marine mammal detections within the visual or PAM clearance 
zones prior to the initiation of detonation;
    (4) For North Atlantic right whales, any visual or acoustic 
detection must trigger a delay to the commencement of UXO/MEC 
detonation. In the event that a large whale is sighted or acoustically 
detected that cannot be confirmed by species, it must be treated as if 
it were a North Atlantic right whale;
    (5) LOA Holder must conduct PAM for at least 24 hours immediately 
prior to foundation installation and UXO/MEC detonation activities;
    (6) During use of any real-time PAM system, at least one PAM 
operator must be designated to monitor each system by viewing data or 
data products that would be streamed in real-time or in near real-time 
to a computer workstation and monitor;
    (7) LOA Holder must use a minimum of one PAM operator to actively 
monitor for marine mammals before, during, and after UXO/MEC 
detonation. The PAM operator must assist visual PSOs in ensuring full 
coverage of the clearance and shutdown zones. The PAM operator must 
inform the Lead PSO(s) on duty of animal detections approaching or 
within applicable ranges of interest to the activity occurring via the 
data collection software system (i.e., Mysticetus or similar system) 
who will be responsible for requesting that the designated crewmember 
implement the necessary mitigation procedures (i.e., delay or 
shutdown);
    (8) PSOs and PAM operators must be on watch for a maximum of 4 
consecutive hours, followed by a break of at least 2 hours between 
watches, and may not exceed a combined watch schedule of more than 12 
hours in a single 24-hour period;
    (9) LOA Holder must prepare and submit a Marine Mammal Monitoring 
Plan to NMFS Office of Protected Resources for review and approval at 
least 180 days before the start of any detonation and abide by the plan 
if approved. LOA Holder must obtain both NMFS Office of Protected 
Resources and NMFS Greater Atlantic Regional Fisheries Office Protected 
Resources Division's concurrence with this Plan prior to the start of 
any UXO/MEC detonation. The plan must include a description of how all 
relevant mitigation and monitoring requirements contained in the LOA 
and those included as part of the action will be implemented; a pile 
driving installation summary and sequence of events; a description of 
all monitoring equipment and evidence (i.e., manufacturer's 
specifications, reports, testing) that it can be used to effectively 
monitor and detect marine mammals in the identified clearance and 
shutdown zones (i.e., field data demonstrating reliable and consistent 
ability to detect large whales at the relevant distances in the 
conditions planned for use); communications and reporting details; 
final UXO/MEC detonation project design (e.g., number and type of UXO/
MECs, removal method(s), charge weight(s), anticipated start date, 
etc.) and all information related to PAM and PSO monitoring protocols 
(including number and location of PSOs) for UXO/MEC activities. The 
Plan(s) must demonstrate sufficient PSO and PAM Operator staffing (in 
accordance with watch shifts), PSO and PAM Operator schedules, and 
contingency plans for instances if additional PSOs and PAM Operators 
are required including any expansion of clearance and/or shutdown zones 
that may be required as a result of SFV. The plan(s) must contain a 
thorough description of how LOA Holder will monitor foundation 
installation activities (drilling, vibratory and impact pile driving) 
during reduced visibility conditions (e.g. rain, fog) and in other low 
visibility conditions, including proof of the efficacy of monitoring 
devices (e.g., mounted thermal/infrared camera systems, hand-held or 
wearable 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

[[Page 52315]]

construction, including varying weather conditions, sea states, and in 
consideration of the use of artificial lighting. The plan must contain 
a thorough description of how LOA Holder will monitor foundation 
installation 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. No 
UXO/MEC detonation can occur without NMFS' approval of the Plan;
    (10) A Passive Acoustic Monitoring Plan (``PAM Plan'') must be 
submitted to NMFS Office of Protected Resources for review and approval 
at least 180 days prior to the planned start of foundation installation 
and prior to the start of any UXO/MEC detonation(s). The authorization 
to take marine mammals would be contingent upon NMFS Office of 
Protected Resources approval of the PAM Plan. The Plan must include a 
description of all proposed PAM equipment and hardware, the calibration 
data, bandwidth capability and sensitivity of hydrophones, and address 
how the proposed passive acoustic monitoring will follow standardized 
measurement, processing methods, reporting metrics, and metadata 
standards for offshore wind (Van Parijs et al., 2021). The Plan must 
describe and include all procedures, documentation, and protocols 
including information (i.e., testing, reports, equipment 
specifications) to support that it will be able to detect vocalizing 
whales 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 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 incorporate 
the requirements relative to North Atlantic right whale reporting. No 
UXO/MEC detonation can occur if LOA Holder's PAM Plan does not receive 
approval from NMFS Office of Protected Resources and NMFS GARFO 
Protected Resources Division; and
    (11) LOA Holder must submit an SFV plan to NMFS Office of Protected 
Resources for review and approval at least 180 days prior to planned 
UXO/MEC detonation activities and abide by the plan if approved. LOA 
Holder must obtain both NMFS Office of Protected Resources and NMFS 
GARFO Protected Resources Division's concurrence with this Plan prior 
to the start of any UXO/MEC detonations. At minimum, the SFV Plan must 
include methodology for collecting, analyzing, and preparing SFV 
measurement data for submission to NMFS Office of Protected Resources 
and describe how the effectiveness of the noise attenuation methodology 
would be evaluated based on the results. SFV for UXO/MEC detonation 
must not occur until NMFS approves the SFV Plan for this activity.
    (e) PSO requirements during HRG surveys. The following measures 
apply to PSOs during HRG surveys using boomers, and sparkers and must 
be implemented by LOA Holder:
    (1) Between four and six PSOs must be present on every 24-hour 
survey vessel and two to three PSOs must be present on every 12-hour 
survey vessel;
    (2) At least one PSO must be on active duty monitoring during HRG 
surveys conducted during daylight (i.e., from 30 minutes prior to civil 
sunrise through 30 minutes following civil sunset) and at least two 
PSOs must be on activity duty monitoring during HRG surveys conducted 
at night;
    (3) PSOs on HRG vessels must begin monitoring 30 minutes prior to 
activating acoustic sources, during the use of these acoustic sources, 
and for 30 minutes after use of these acoustic sources has ceased. Any 
observations of marine mammals must be communicated to PSOs on all 
nearby survey vessels during concurrent HRG surveys; and
    (4) During daylight hours when survey equipment is not operating, 
LOA Holder must ensure that visual PSOs conduct, as rotation schedules 
allow, observations for comparison of sighting rates and behavior with 
and without use of the specified acoustic sources. Off-effort PSO 
monitoring must be reflected in the monthly PSO monitoring reports.
    (f) Reporting. LOA Holder must comply with the following reporting 
measures:
    (1) Prior to initiation of the specified activities, LOA Holder 
must demonstrate in a report submitted to NMFS Office of Protected 
Resources that all required training for LOA Holder personnel 
(including the vessel crews, vessel captains, PSOs, and PAM operators) 
has been completed;
    (2) LOA Holder must use a standardized reporting system during the 
effective period of the LOA. All data collected related to the Project 
must be recorded using industry-standard software that is installed on 
field laptops and/or tablets. Unless stated otherwise, all reports must 
be submitted to NMFS Office of Protected Resources 
([email protected]), dates must be in MM/DD/YYYY 
format, and location information must be provided in Decimal Degrees 
and with the coordinate system information (e.g., NAD83, WGS84, etc.);
    (3) For all monitoring efforts and marine mammal sightings, the 
following information must be collected and reported to NMFS Office of 
Protected Resources: Date and time that monitored activity begins or 
ends; the construction activities occurring during each observation 
period; the watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform); the PSO who sighted 
the animal; the time of sighting; the weather parameters (e.g., wind 
speed, percent cloud cover, visibility); the water conditions (e.g., 
Beaufort sea state, tide state, water depth); all marine mammal 
sightings, regardless of distance from the construction activity; 
species (or lowest possible taxonomic level possible); the pace of the 
animal(s); the estimated number of animals (minimum/maximum/high/low/
best); the estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.); the description 
(i.e., as many distinguishing features as possible of each individual 
seen, including length, shape, color, pattern, scars or markings, shape 
and size of dorsal fin, shape of head, and blow characteristics); the 
description of any marine mammal behavioral observations (e.g., 
observed behaviors such as feeding or traveling) and observed changes 
in behavior, including an assessment of behavioral responses thought to 
have resulted from the specific activity; the animal's closest distance 
and bearing from the pile being driven or specified HRG equipment and 
estimated time entered or spent within the Level A harassment and/or 
Level B harassment zone(s); the activity at time of sighting (e.g., 
vibratory installation/removal, impact pile driving, construction 
survey), use of any noise attenuation device(s), and specific phase of 
activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, 
soft-start for pile driving, active pile driving, etc.); the marine 
mammal occurrence in Level A harassment or Level B harassment zones; 
the description of any mitigation-related action implemented, or 
mitigation-related actions called for but not implemented, in response 
to the sighting (e.g., delay, shutdown, etc.) and

[[Page 52316]]

time and location of the action; and other human activity in the area, 
and; other applicable information, as required in any LOA issued under 
the final rule;
    (4) If a marine mammal is acoustically detected during PAM 
monitoring, the following information must be recorded and reported to 
NMFS Office of Protected Resources: Location of hydrophone (latitude & 
longitude; in Decimal Degrees) and site name; bottom depth and depth of 
recording unit (in meters); recorder (model & manufacturer) and 
platform type (i.e., bottom-mounted, electric glider, etc.), and 
instrument ID of the hydrophone and recording platform (if applicable); 
time zone for sound files and recorded date/times in data and metadata 
(in relation to Universal Coordinated Time (UTC); i.e., Eastern 
Standard Time (EST) time zone is UTC-5); duration of recordings (start/
end dates and times; in International Organization for Standardization 
(ISO) 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ); deployment/retrieval 
dates and times (in ISO 8601 format); recording schedule (must be 
continuous); hydrophone and recorder sensitivity (in dB re 1 
microPascal ([mu]Pa)); calibration curve for each recorder; bandwidth/
sampling rate (in Hz); sample bit-rate of recordings; and, detection 
range of equipment for relevant frequency bands (in meters);
    (5) For each detection, the following information must be noted:
    (i) Species identification (if possible); call type and number of 
calls (if known); temporal aspects of vocalization (date, time, 
duration, etc.; date times in ISO 8601 format); confidence of detection 
(detected, or possibly detected); comparison with any concurrent visual 
sightings; location and/or directionality of call (if determined) 
relative to acoustic recorder or construction activities; location of 
recorder and construction activities at time of call; name and version 
of detection or sound analysis software used, with protocol reference; 
minimum and maximum frequencies viewed/monitored/used in detection (in 
Hz); and name of PAM operator(s) on duty.
    (ii) [Reserved]
    (6) LOA Holder must compile and submit weekly reports to NMFS 
Office of Protected Resources that document the daily start and stop of 
all pile driving, drilling, UXO/MEC detonations, and HRG survey 
associated with the Project; the foundation/pile ID, type of pile, pile 
diameter, start and finish time of each drilling and pile driving 
event, hammer log (number of strikes, max hammer energy, duration of 
piling) per pile, any changes to noise attenuation systems and/or 
hammer schedule, the start and stop of associated observation periods 
by PSOs and PAM operators; details on the deployment of PSOs and PAM 
operators; a record of all detections of marine mammals (acoustic and 
visual) including time (UTC) of sighting/detection, species ID, 
behavior, distance (meters) from vessel to animal at time of sighting/
detection (meters), animal distance (meters) from pile installation 
vessel and UXO/MEC detonation site, vessel/project activity at time of 
sighting/detection, platform/vessel name, and mitigation measures taken 
(if any) and reason. Sightings/detections during pile driving, 
drilling, and UXO/MEC activities (clearance, active pile driving and 
drilling, post-pile driving and drilling and detonation) and all other 
(transit, opportunistic, etc.) sightings/detection must be reported and 
identified as such; 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), can consist of 
Quality Assurance/Quality Compliance (QA/QC) reviewed data, and must 
include the information required under this section. The weekly report 
must also identify which turbines become operational and when (a map 
must be provided). This weekly report must also identify when, what 
charge weight size, and where UXO/MECs are detonated (a map must also 
be provided). The weekly reports must also confirm that the required 
SFV was carried out for each pile and UXO/MEC detonation and that 
results were reviewed on the required timelines. Abbreviated SFV 
reports must be appended to the weekly report. Once all foundation pile 
installation and UXO/MEC detonations are completed, weekly reports are 
no longer required by LOA Holder;
    (7) LOA Holder must 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, including dates and location of any fisheries surveys 
carried out, vessel transits (number, type of vessel, MMIS number, 
number of transits, vessel activity, and route (origin and destination, 
including transits from all ports, foreign and domestic)), cable 
installation activities (including sea to shore transition),number of 
piles installed and pile IDs, UXO/MEC detonation, all detections of 
marine mammals (sightings/detections must include species ID, time, 
date, initial detection distance, vessel/platform name, vessel 
activity, vessel speed, bearing to animal, project activity), and any 
mitigative action taken (or if mitigation actions could not be taken, 
provide reasons why). 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). This 
weekly report must also identify when, what charge weight size, and 
where UXO/MECs are detonated (a map must also be provided);
    (8) LOA Holder must submit a draft annual report to NMFS Office of 
Protected Resources no later than 90 days following the end of a given 
calendar year. LOA Holder must provide a final report within 30 days 
following resolution of NMFS's comments on the draft report. The draft 
and final reports must detail the following:
    (i) A summary of all activities conducted, the dates and locations 
of all fisheries surveys, including location and duration for all trawl 
surveys summarized by month, number of vessel transits inclusive of 
port of origin and destination, and a summary table of any observations 
and captures of Endangered Species Act (ESA) listed species during 
these surveys. The report must also summarize all acoustic telemetry 
and benthic monitoring activities that occurred, inclusive of vessel 
transits. Each annual report is due by February 15 (e.g., the report 
for 2024 activities is due by February 15, 2025). The total number of 
marine mammals of each species/stock detected and how many were within 
the designated Level A harassment and Level B harassment zone(s) with 
comparison to authorized take of marine mammals for the associated 
activity type; marine mammal detections and behavioral observations 
before, during, and after each activity; what mitigation measures were 
implemented (i.e., number of shutdowns or clearance zone delays, etc.) 
or, if no mitigative actions was taken, why not; operational details 
(i.e., days and duration of impact and vibratory pile driving, days and 
duration of drilling, days and number of UXO/MEC detonations, days and 
amount of HRG survey effort, etc.); any PAM systems used; The results, 
effectiveness, and which noise attenuation systems were used during 
relevant activities (i.e., impact and vibratory pile driving, drilling, 
and UXO/MEC detonations); summarized

[[Page 52317]]

information related to situational reporting; and any other important 
information relevant to the Project, including additional information 
that may be identified through the adaptive management process. The 
final annual report must be prepared and submitted within 30 calendar 
days following the receipt of any comments from NMFS Office of 
Protected Resources on the draft report. If no comments are received 
from NMFS Office of Protected Resources within 60 calendar days of NMFS 
Office of Protected Resources' receipt of the draft report, the report 
must be considered final.
    (ii) [Reserved]
    (9) LOA Holder must submit its draft final report to NMFS Office of 
Protected Resources on all visual and acoustic monitoring conducted 
within 90 calendar days of the completion of the specified activities. 
A 5-year report must be prepared and submitted within 60 calendar days 
following receipt of any NMFS Office of Protected Resources comments on 
the draft report. If no comments are received from NMFS Office of 
Protected Resources within 60 calendar days of NMFS Office of Protected 
Resources receipt of the draft report, the report shall be considered 
final. The draft and final 5-year report must include, but is not 
limited to: the total number (annually and across all 5 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, UXO/MEC detonations, 
HRG) completed in each of the 5 years and total; Geographic Information 
System (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 5-year 
summary and evaluation of all SFV data collected; a 5-year summary and 
evaluation of all PAM data collected; a 5-year summary and evaluation 
of marine mammal behavioral observations; a 5-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) LOA Holder must submit a SFV plan at least 180 days prior to 
the planned start of vibratory and impact pile driving, drilling, and 
UXO/MEC detonations. The plan must detail all plans and procedures for 
noise attenuation, including procedures for adjusting and optimizing 
the noise attenuation system(s), maintenance procedures and timelines, 
and detail the available contingency noise attenuation measures/systems 
if distances to modeled isopleths of concern are exceeded (as 
documented during SFV). At minimum, the plan must describe how LOA 
Holder would ensure that the first three monopile and two jacket (using 
pin piles) foundation installation sites selected for SFV are 
representative of the rest of the monopile and pin pile installation 
sites. LOA Holder must provide justification for why these locations 
are representative of the scenario modeled. The plan must describe how 
LOA Holder will conduct the required Abbreviated SFV, inclusive of 
requirements to review results within 24 hours and triggers for 
Thorough SFV. The plan must provide a table of the identification 
number and coordinates of each foundation location, and specify the 
underwater acoustics analysis model scenario against which each 
foundation location's SFV results will be compared. The plan(s) must 
also include the piling schedule and sequence of events, communication 
and reporting protocols, and methodology for collecting, analyzing, and 
preparing SFV data for submission to NMFS, including instrument 
deployment, locations of all hydrophones (including direction and 
distance from the pile), hydrophone sensitivity, recorder/measurement 
layout, and analysis methods. The plan must also identify the number 
and distance of relative location of hydrophones for Thorough and 
Abbreviated SFV. The plan must include a template of the interim report 
to be submitted and describe all the information that will be reported 
in the SFV Interim Reports including the number, location, depth, 
distance, and predicted and actual isopleth distances that will be 
included in the final report(s). The plan must describe how the interim 
SFV report results will be evaluated against the modeled results, 
including which modeled scenario the results will be reported against, 
and include a decision tree of what happens if measured values exceed 
predicted values. The plan must address how LOA Holder will implement 
the measures associated with the required SFV which includes, but is 
not limited to, identifying additional or modified noise attenuation 
measures (e.g., additional noise attenuation device, adjust hammer 
operations, adjust or modify the noise mitigation system) that will be 
applied to reduce sound levels if measured distances are greater than 
those modeled as well as implementation of any expanded clearance or 
shutdown zones, including deployment of additional PSOs. In the case 
that these sites/scenarios are not determined to be representative of 
all other monopile/pin pile installation sites, LOA Holder must include 
information on how additional sites/scenarios would be selected for 
SFV. The plan must also include methodology for collecting, analyzing, 
and preparing SFV data for submission to NMFS Office of Protected 
Resources. The plan must describe how the effectiveness of the noise 
attenuation methodology would be evaluated based on the results.
    (i) LOA Holder must also provide, as soon as they are available but 
no later than 48 hours after each installation, the initial results of 
the SFV measurements to NMFS Office of Protected Resources in an 
interim report after each monopile for the first three piles, after two 
jacket foundation using pin piles are installed, and after each UXO/MEC 
detonation; The plan must describe how LOA Holder will conduct the 
required Thorough SFV for all planned UXO/MEC detonations. Thorough SFV 
consists of: SFV measurements made at a minimum of four distances from 
the detonation, 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 and three additional 
ranges selected such that measurement of identified isopleths are 
accurate, feasible, and avoid extrapolation. At least one additional 
measurement at an azimuth 90 degrees from the array at approximately 
750 m must be made. At each location, there must be a near bottom and 
mid-water column hydrophone (measurement systems). The plan must 
describe how the interim SFV report results will be evaluated against 
the modeled results and decision tree of what happens if measured 
values exceed predicted values. The plan must address how LOA Holder 
will implement the measures associated with the required SFV which 
includes, but is not limited to, identifying additional or modified 
noise attenuation measures (e.g., additional noise attenuation device, 
adjust hammer operations, adjust or modify the noise mitigation system) 
that will be applied to reduce sound levels if measured distances are 
greater than those modeled as well as implementation of any expanded 
clearance or shutdown zones, including deployment of additional PSOs;

[[Page 52318]]

    (ii) The interim report must include data from hydrophones 
identified for interim reporting in the SFV Plan and include a summary 
of pile installation activities (pile diameter, pile weight, pile 
length, water depth, sediment type, hammer type, total strikes, total 
installation time (start time, end time), duration of pile driving, max 
single strike energy, NAS deployments), pile location, recorder 
locations, modeled and measured distances to thresholds, received 
levels (rms, peak, and sound exposure level (SEL)) results from 
Conductivity, Temperature, and Depth (CTD) casts/sound velocity 
profiles, signal and kurtosis rise times, pile driving plots, activity 
logs, weather conditions. Additionally, any important noise attenuation 
device malfunctions (suspected or definite), must be summarized and 
substantiated with data (e.g. photos, positions, environmental data, 
directions, etc.). Such malfunctions include gaps in the bubble 
curtain, significant drifting of the bubble curtain, and any other 
issues which may indicate sub-optimal mitigation performance or are 
used by LOA Holder to explain performance issues;
    (iii) The SFV plan must also include how operational noise would be 
monitored. LOA Holder must estimate source levels (at 10 m from the 
operating foundation) based on received levels measured at distances 
described in a NMFS-approved SFV plan for operations. These data must 
be used to identify estimated transmission loss rates. Operational 
parameters (e.g., direct drive/gearbox information, turbine rotation 
rate) as well as sea state conditions and information on nearby 
anthropogenic activities (e.g., vessels transiting or operating in the 
area) must be reported;
    (iv) For those foundations and UXO/MEC detonations requiring 
Thorough SFV measurements, LOA Holder must provide the initial results 
of the SFV measurements to NMFS Office of Protected Resources in an 
interim report after each foundation installation event as soon as they 
are available and prior to 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, 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. LOA Holder 
must also report any immediate observations which are suspected to have 
a significant impact on the results including but not limited to: 
observed noise mitigation system issues, obstructions along the 
measurement transect, and technical issues with hydrophones or 
recording devices. If any in situ calibration checks for hydrophones 
reveal a calibration drift greater than 0.75 dB, pistonphone 
calibration checks are inconclusive, or calibration checks are 
otherwise not effectively performed, LOA Holder must indicate full 
details of the calibration procedure, results, and any associated 
issues in the 48-hour interim reports;
    (v) All results from Abbreviated SFV 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 LOA 
Holder, including an explanation of factors that contributed to the 
exceedance and corrective actions that were taken to avoid exceedance 
on subsequent piles;
    (vi) The final results of all SFV measurements from each foundation 
installation and UXO/MEC detonations must be submitted as soon as 
possible, but no later than within 90 days following completion of each 
event's SFV measurements. The final results of Thorough SFV for UXO/MEC 
detonations must be submitted as soon as possible, but no later than 
within 90 days following completion of each UXO/MEC detonation. Within 
60 days of the end of each construction season, LOA Holder must compile 
and submit all final Abbreviated SFV reports. 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 and UXO/MEC detonation locations; 
the extents of the measured Level A harassment and Level B harassment 
zone(s); hammer energies required for pile installation and the number 
of strikes per pile; and charge weights and other relevant 
characteristics of UXO/MEC detonations; the hydrophone equipment and 
methods (i.e., recording device, bandwidth/sampling rate, distance from 
the monopile/pin pile and/or UXO/MEC where recordings were made; depth 
of recording device(s)); a description of the SFV measurement hardware 
and software, including software version used, calibration data, 
bandwidth capability and sensitivity of hydrophone(s), any filters used 
in hardware or software, any limitations with the equipment, and other 
relevant information; the spatial configuration of the noise 
attenuation device(s) relative to the pile and/or UXO/MEC charge; a 
description of the noise abatement system and operational parameters 
(e.g., bubble flow rate, distance deployed from the pile and/or UXO/
MEC, etc.) and any action taken to adjust the noise abatement system. A 
discussion which includes any observations which are suspected to have 
a significant impact on the results including but not limited to: 
observed noise mitigation system issues, obstructions along the 
measurement transect, and technical issues with hydrophones or 
recording devices. LOA Holder must submit a revised report within 30 
days following

[[Page 52319]]

receipt of NMFS' comments on the draft final report;
    (vii) LOA Holder 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 donor 
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); and
    (viii) If at any time during the project LOA Holder becomes aware 
of any issue or issues which may (to any reasonable subject-matter 
expert, including the persons performing the measurements and analysis) 
call into question the validity of any measured Level A harassment or 
Level B harassment isopleths to a significant degree, which were 
previously transmitted or communicated to NMFS Office of Protected 
Resources, LOA Holder must inform NMFS Office of Protected Resources 
within 1 business day of becoming aware of this issue or before the 
next pile is driven, whichever comes first.
    (11) If a North Atlantic right whale is acoustically detected at 
any time by a project-related PAM system, LOA Holder must ensure the 
detection is reported as soon as possible to NMFS, but no longer than 
24 hours after the detection via the 24-hour North Atlantic right whale 
Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is 
not necessary when reporting PAM detections via the template. Full 
detection data, metadata, and location of recorders (or GPS tracks, if 
applicable) from all real-time hydrophones used for monitoring during 
construction must be submitted within 90 calendar days following 
completion of activities requiring PAM for mitigation via the ISO 
standard metadata forms available on the NMFS Passive Acoustic 
Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit the 
completed data templates to [email protected]. The full 
acoustic recordings from real-time systems must also be sent to the 
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;
    (12) LOA Holder must submit situational reports if the following 
circumstances occur, including all instances wherein an exemption is 
taken must be reported to NMFS Office of Protected Resources within 24 
hours, in specific circumstances, including but not limited to the 
following:
    (i) All sightings of North Atlantic right whale must be reported 
immediately (no later than 24 hours). If a North Atlantic right whale 
is sighted with no visible injuries or entanglement at any time by 
project PSOs or project personnel, LOA Holder 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.
    (A) To report sightings and acoustic detections, download and 
complete the Real-Time North Atlantic Right Whale Reporting Template 
spreadsheet found here: https://www.fisheries.noaa.gov/resource/document/template-datasheet-real-time-north-atlantic-right-whale-acoustic-and-visual. Save the completed spreadsheet as a .csv file and 
email it to NMFS Northeast Fisheries Science Center Protected Species 
Division (NEFSC-PSD) ([email protected]), NMFS GARFO Protected 
Species Division (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).
    (B) The following information must be reported: 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 (see 
above). PAM detections are not reported to WhaleAlert or the U.S. Coast 
Guard.
    (C) If a large whale species is observed that is not a North 
Atlantic right whale, LOA Holder must report the sighting via the 
WhaleAlert app (https://www.whalealert.org/) as soon as possible but 
within 24 hours.
    (ii) In the event that personnel involved in the Project discover a 
stranded, entangled, injured, or dead marine mammal, LOA Holder must 
immediately report the observation to NMFS. If in the Greater Atlantic 
Region (Maine 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, 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 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.
    (iii) 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,

[[Page 52320]]

LOA Holder 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, LOA 
Holder must immediately report the incident to NMFS Office of Protected 
Resources ([email protected]) and, if in the Greater 
Atlantic Region to the NMFS GARFO ([email protected]) 
or if in the Southeast Region, to the NMFS 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 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, propeller 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. LOA 
Holder 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. LOA 
Holder must not resume their activities until notified by NMFS Office 
of Protected Resources.
    (13) LOA Holder must report any lost gear associated with the 
fishery surveys to the NOAA GARFO-PRD ([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;
    (14) LOA Holder must provide NMFS Office of Protected Resources 
with notification of planned UXO/MEC detonation as soon as possible but 
at least 48 hours prior to the planned detonation, unless this 48-hour 
notification would create delays to the detonation that would result in 
imminent risk of human life or safety. This notification must include 
the coordinates of the planned detonation, the estimated charge size, 
and any other information available on the characteristics of the UXO/
MEC. If an UXO/MEC detonation occurs, within 72 hours after a 
detonation but before the next detonation, whichever is sooner, LOA 
Holder must report to NMFS Office of Protected Resources the time, 
date, location (latitude/longitude Decimal Degrees), charge weight 
size, justification on why detonation was necessary and other means of 
removal or avoidance could not occur, all detections of marine mammals 
within the UXO/MEC zones, and any mitigative action taken; and
    (15) Performance reports for piles with SFV must be submitted by 
LOA Holder with the weekly pile driving reports. For UXO/MEC 
detonations, the report must be submitted as soon as it is available, 
but no later than when the interim SFV report is submitted for the UXO/
MEC detonation.
    (16) Performance reports for each bubble curtain deployed must 
include water depth, current speed and direction, wind speed and 
direction, bubble curtain deployment/retrieval date and time, bubble 
curtain hose length, bubble curtain radius (distance from pile), 
diameter of holes and hole spacing, air supply hose length, 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 
times, and stop times), free air delivery (m\3\/min), total hose air 
volume (m\3\/(min m)), schematic of GPS waypoints during hose laying, 
maintenance procedures performed (pressure tests, inspections, 
flushing, re-drilling, and any other hose or system maintenance) before 
and after installation and timing of those tests, and the length of 
time the bubble curtain was on the seafloor prior to foundation 
installation.
    (i) The report must include any important observations regarding 
performance (before, during, and after pile installation or UXO/MEC 
detonation), such as any observed weak areas of low pressure. The 
report may also include any relevant video and/or photographs of the 
bubble curtain(s) operating during pile driving (inclusive of relief 
drilling) and UXO/MEC detonation.
    (ii) [Reserved].


Sec.  217.326  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
LOA Holder must apply for and obtain an LOA.
    (b) A LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed March 26, 2030, the expiration date of 
this subpart.
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, LOA Holder must 
apply for and obtain a modification of the LOA as described in Sec.  
217.327.
    (d) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (e) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking

[[Page 52321]]

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


Sec.  217.327  Modifications of Letter of Authorization.

    (a) A LOA issued under Sec. Sec.  217.322 and 217.326 or this 
section for the activity identified in Sec.  217.320(c) shall be 
modified, upon request by LOA Holder, provided that:
    (1) The specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for this subpart (excluding changes made 
pursuant to the adaptive management provision in paragraph (c)(1) of 
this section); and
    (2) NMFS determines that the mitigation, monitoring, 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. Sec.  217.322 and 217.326 or this 
section for the activities identified in Sec.  217.320(a) may be 
modified by NMFS Office of Protected Resources under the following 
circumstances:
    (1) Through adaptive management, NMFS may modify (including remove, 
revise, or add to) the existing mitigation, monitoring, or reporting 
measures after consulting with LOA Holder regarding the practicability 
of the modifications, if doing so creates a reasonable likelihood of 
more effectively accomplishing the goals of the mitigation and 
monitoring 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 LOA Holder's monitoring;
    (B) Results from other marine mammals and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by this subpart or 
subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) If the NMFS Office of Protected Resources determines that an 
emergency exists that poses a significant risk to the well-being of the 
species or stocks of marine mammals specified in the LOA issued 
pursuant to Sec. Sec.  217.322 and 217.326 or this section, 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.  217.328-217.329  [Reserved]

[FR Doc. 2024-12085 Filed 6-20-24; 8:45 am]
BILLING CODE 3510-22-P