Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Phase 2 Construction of the Vineyard Wind 1 Offshore Wind Project off Massachusetts, 75654-75702 [2024-20541]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 179 (Monday, September 16, 2024)]
[Notices]
[Pages 75654-75702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20541]



[[Page 75653]]

Vol. 89

Monday,

No. 179

September 16, 2024

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to Phase 2 Construction of the Vineyard Wind 
1 Offshore Wind Project off Massachusetts; Notice

Federal Register / Vol. 89 , No. 179 / Monday, September 16, 2024 / 
Notices

[[Page 75654]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD935]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Phase 2 Construction of the 
Vineyard Wind 1 Offshore Wind Project off Massachusetts

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Vineyard Wind 1 LLC (Vineyard Wind 1) to incidentally harass marine 
mammals during the completion of construction activities associated 
with the Vineyard Wind 1 Offshore Wind Project in the northern portion 
of Lease Area OCS-A 0501 offshore of Massachusetts.

DATES: This authorization is effective from October 1, 2024 through 
September 30, 2025.

ADDRESSES: Electronic copies 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 below.

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

SUPPLEMENTARY INFORMATION:

Background

    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 and either an 
authorized is proposed or, if the taking is limited to harassment, a 
notice of a proposed IHA is provided to the public for review.
    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). Further, NMFS must prescribe the permissible methods 
of taking and 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 in shorthand as 
``mitigation''); and requirements pertaining to the monitoring and 
reporting of the takings. The definitions of all applicable MMPA 
statutory terms cited above are included in the relevant sections 
below.

Summary of Request

    On December 15, 2023, NMFS received a request from Vineyard Wind 1 
for an IHA to take marine mammals incidental to Phase 2 construction of 
the Vineyard Wind 1 Offshore Wind Project off Massachusetts, 
specifically wind turbine generator (WTG) monopile foundation 
installation, in the northern portion of Lease Area OCS-A 0501. 
Vineyard Wind 1 completed installation of 47 WTG monopiles and one 
electrical service platform (ESP) jacket foundation in 2023 under an 
IHA issued by NMFS on June 25, 2021 (86 FR 33810) with effective dates 
from May 1, 2023 through April 30, 2024. Due to unexpected delays, 
Vineyard Wind 1 was not able to complete pile driving activities before 
the expiration date of the current IHA (April 30, 2024); thus, Vineyard 
Wind 1 requested take of marine mammals incidental to installing the 
remaining 15 monopiles to complete foundation installation for the 
Project. In total, the Project will consist of 62 WTG monopiles and 1 
offshore substation.
    Following NMFS' review of the December 2023 application, Vineyard 
Wind 1 submitted multiple revised versions of the application, and it 
was deemed adequate and complete on March 13, 2024. The Vineyard Wind 1 
request was for take of 14 species of marine mammals, by Level B 
harassment and, for 6 of these species, Level A harassment. Neither 
Vineyard Wind 1 nor NMFS expect serious injury or mortality to result 
from this activity and, therefore, an IHA is appropriate.
    Vineyard Wind 1 previously conducted high resolution geophysical 
(HRG) site characterization surveys within the Lease Area and 
associated export cable corridor in 2016, 2018-2021, and during the 
2023 construction season from June-December (ESS Group Inc., 2016; 
Vineyard Wind, 2018, 2019; EPI Group, 2021; RPS, 2022; Vineyard Wind, 
2023a-f). During the 2023 construction season, NMFS coordinated closely 
with Vineyard Wind 1 to ensure compliance with their IHA. In a few 
instances, NMFS raised concerns with Vineyard Wind 1 regarding their 
implementation of certain required measures. NMFS worked closely with 
Vineyard Wind 1 throughout the construction season to course correct, 
where needed, and ensure compliance with the requirements (e.g., 
mitigation, monitoring, and reporting) of the previous IHA. Information 
regarding their monitoring results may be found in the Estimated Take 
of Marine Mammals section.

Description of the Specified Activity

Overview

    Vineyard Wind 1 plans to construct and operate an 800-megawatt (MW) 
wind energy facility, the Project, in the Atlantic Ocean in Lease area 
OCS-A 0501, offshore of Massachusetts. Altogether, the project will 
consist of up to 62 offshore WTGs, 1 ESP, an onshore substation, 
offshore and onshore cabling, and onshore operations and maintenance 
facilities. The onshore substation and ESP are now complete. 
Installation of 47 monopile foundations was completed under the 
previous IHA (86 FR 33810, June 25, 2021), effective from May 1, 2023 
through April 30, 2024. However, due to unexpected delays, Vineyard 
Wind 1 was not able to complete pile driving activities before the 
expiration date of the IHA (April 30, 2024). Take of marine mammals, in 
the form of behavioral harassment and limited instances of auditory 
injury, may occur incidental to the installation of the remaining 15 
WTG monopile foundations due to in-water noise exposure resulting from 
impact pile driving. The remaining 15 monopile foundations will be 
installed within a Limited Installation Area (LIA) (64.3 square 
kilometers (km\2\; 15,888.9 acres)) within the Lease Area (264.4 km\2\ 
(65,322.4 acres)). Installation of the remaining 15 monopile 
foundations is expected to occur in 2024, but could also occur in 2025.

Specific Geographic Region

    The 15 remaining piles will be installed within a Limited 
Installation

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Area (LIA) occupying a portion of the Wind Development Area (WDA) 
within the Bureau of Ocean Energy Management (BOEM) lease area located 
in Federal waters off Massachusetts (figure 1). At its nearest point, 
the LIA is approximately 29 kilometers (km; 18.1 miles (mi)) from the 
southeast corner of Martha's Vineyard and a similar distance from 
Nantucket. Water depths in the WDA range from approximately 37-49.5 
meters (m; 121-162 feet (ft)). Water depth and bottom habitat are 
similar throughout the Lease Area (Pyc et al., 2018). Figure 1 shows 
the LIA and planned locations for the remaining 15 monopiles to be 
installed.
    A detailed description of the specific geographic region and 
planned construction activities is provided in the Federal Register 
notice for the proposed IHA (89 FR 31008, April 23, 2024). Since that 
time, no changes have been made to the planned activities. Therefore, a 
detailed description is not provided here. Please refer to that Federal 
Register notice for the description of the specific activities.
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Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Vineyard Wind 1 was 
published in the Federal Register on April 23, 2024 (89 FR 31008). That 
notice described, in detail, Vineyard Wind's activities, the marine 
mammal species that may be affected by the activities, and the 
anticipated effects on marine mammals. In that notice, we requested 
public input on the request for authorization described therein, our 
analyses, the proposed authorization,

[[Page 75657]]

and any other aspect of the notice of the proposed IHA, and requested 
that interested persons submit relevant information, suggestions, and 
comments.
    During the 30-day public comment period, NMFS received 87 total 
comment letters, including letters from various non-governmental 
organizations (Seafreeze, Ltd., Rand Acoustics, LLC., Long Island 
Commercial Fishing Association (LICFA), Save Right Whales Coalition 
(SRWC), Rand Acoustics, Inc., ACK Residents Against Turbines) and 
members of the general public. We note that approximately 11 comment 
letters followed one of 2 different generic template formats, in which 
respondents provided comments that were identical or substantively the 
same. NMFS has reviewed all public comments received on the proposed 
issuance of the Vineyard Wind 1 Phase 2 IHA. All relevant substantive 
comments and NMFS' responses are provided below. Comments that are out 
of scope to NMFS' action of issuing the requested IHA (e.g., comments 
regarding how unusual mortality events (UMEs) are determined to be 
closed or requests for necropsy reports; declarations on the adequacy 
of the previously issued IHA to Vineyard Wind) and comments indicating 
general support for or opposition to offshore wind construction are not 
relevant to the proposed action and therefore were not considered or 
addressed here. We also provide no response to species or statutes not 
relevant to our proposed action under section 101(a)(5)(D) of the MMPA. 
The public comments and recommendations are available online at: 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind. Please 
see the comment submissions for full details regarding the 
recommendations and supporting rationale.

Modeling and Take Estimates

    Comment 1: A commenter suggested that NMFS and Vineyard Wind 1 
should not operate under the assumption that Level B takes do not 
result in injury or death. The commenter suggests that the IHA analysis 
is deficient as behavioral disturbance resulting from the proposed 
activities could result in auditory masking, disruption to navigational 
ability and spatial orientation, splitting of mother calf pairs, and 
increased stress and cortisol responses could lead to secondary deaths 
due to entanglements, vessel strikes, and strandings. Another commenter 
suggested that NMFS was authorizing take in the form of mortality and, 
further, stated that North Atlantic right whales are on the brink of 
extinction and a single additional death from construction activities 
could be catastrophic.
    Response: NMFS disagrees with commenters that the planned pile 
driving activities would cause mortality or serious injury of marine 
mammals, and this final IHA does not authorize mortality or serious 
injury. The best scientific evidence available indicates that the 
anticipated impacts from the specified activities potentially include 
avoidance, cessation of foraging or communication, temporary threshold 
shift (TTS) and permanent threshold shift (PTS), stress, masking, etc. 
(as described in the Potential Effects of Specified Activities on 
Marine Mammals and Their Habitat section in the proposed IHA Federal 
Register notice (89 FR 31008, April 23, 2024). Further, as described in 
the NID section, there is no evidence to suggest that these authorized 
impacts (characterized as harassment), at the magnitude and severity 
anticipated to result from these activities, would lead to impacts on 
reproduction or survival of any individual North Atlantic right whale 
(NARW) or other marine mammals, much less mortality.
    In addition, NMFS emphasizes that there is no evidence that noise 
resulting from offshore wind development-related specified activities 
would cause increased risk of marine vessel strikes, entanglements, or 
mammal strandings. 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 or be displaced in a manner that would result in 
a higher risk of vessel strike or entanglement, as suggested by a 
commenter, 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. Not only would this activity be limited to 
times of year when North Atlantic right whale presence is lower, pile 
driving would be intermittent, and only occur for a limited time over 
the course of 1 year. 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 or experience entanglement.
    Comment 2: Multiple commenters have expressed general concern for 
impacts to marine mammals, specifically to North Atlantic right whales, 
indicating that there are too many takes proposed for authorization and 
the IHA should be put on hold until more is known about impacts of 
offshore wind construction activities to North Atlantic right whales. A 
commenter suggests that estimated take by Level A harassment for North 
Atlantic right whales should be analyzed as modeled exposure estimates 
were greater than zero. Another commenter indicates that every attempt 
must be made to protect North Atlantic right whale calves from the risk 
of TTS and that pile driving should shut down for the remainder of a 
day if a mother and calf were to enter a clearance or shutdown zone.
    Response: NMFS appreciates the commenters' general concern for 
marine mammals and specifically for North Atlantic right whales and, in 
general, acknowledges the need for additional data regarding the 
impacts of offshore wind construction activities on North Atlantic 
right whales; but disagrees that Level A harassment of NARW will result 
from the activity or that the IHA should be put on hold until more is 
known. NMFS is required to consider the best available science when 
assessing potential impacts and cannot delay authorization of an IHA 
until additional data is available. While there was a very small amount 
of Level A harassment modeled, the model is conservative for both Level 
A harassment and Level B harassment, as it does not take into account 
that Vineyard Wind 1 will be required to monitor and delay or shut down 
pile driving activities if a North Atlantic right whale is visually 
sighted at any distance by the pile driving protected species observers 
(PSOs) or acoustically detected within the 10 km passive acoustic 
monitoring (PAM) clearance and shutdown zone. As described in the 
proposed IHA, from November 1 through December 31 (when Vineyard Wind 1 
would be installing piles), if a North Atlantic right whale (not just a 
mother/calf pair) is detected either via real-time PAM or vessel-based 
surveys at any distance from the pile driving location, pile driving 
must be delayed until the ``follow-up vessel-based survey'' described 
in their Pile Driving Monitoring Plan has been completed. Moreover, if 
three or more North Atlantic right whales are observed, pile driving 
will be delayed until the following day. These conservative measures 
were included in the proposed

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IHA in recognition that North Atlantic right whales are more likely to 
be foraging in the area during November and December and that 
aggregations of North Atlantic right whales are more likely to remain 
in an area. The commenters' suggestion to delay pile driving until the 
next day if a mother and calf pair is observed is not warranted in 
November and December given the other extensive mitigation measures in 
place and the fact that data do not suggest mother and calf pairs 
remain in the area (Quintana-Rizzo et al., 2021). Delaying pile driving 
would extend the project later into December which could result in more 
impacts as whale density increases throughout the winter (i.e., the 
later in December, the more whales are likely to be present). Moreover, 
delaying the project is not practicable as Vineyard Wind is installing 
the 15 remaining piles in 2024 but must cease pile driving after 
December 31. Given these mitigation measures and the extensive related 
monitoring efforts designed to detect North Atlantic right whales for 
mitigation, NMFS does not anticipate and has not authorized any take by 
Level A harassment for North Atlantic right whales. The required 
measures reduce the risk of TTS for any North Atlantic right whale. 
Accordingly, as described in the Federal Register notice for the 
proposed IHA (89 FR 31008, April 23, 2024), the final IHA assumes that 
the mitigation efforts will be effective at reducing the potential for 
Level A harassment calculated in the density-based models as, 
specifically, the small number of instances in which a North Atlantic 
right whale was modeled to approach pile driving at a distance 
associated with exposure above the Level A harassment threshold, would 
not be expected to occur given the anticipated effectiveness of 
clearance and shutdowns in preventing exposure at notably greater 
distances and lower levels. We also note that while the scientific 
literature documents marine mammals are likely to avoid loud noises 
such as pile driving (e.g., Brandt et al., 2016; Nowacek 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). NMFS recognizes that the 
key to effective mitigation is effective monitoring and the ability to 
detect marine mammals so that mitigation measures, such as delay to 
commencement of pile driving and shutdown should pile driving be 
occurring, may be implemented. Vineyard Wind 1 is required to undertake 
extensive monitoring to maximize the ability to detect marine mammals 
with at least 9 PSOs monitoring for marine mammals before, during, and 
after pile driving. The reduction to the Level A harassment density-
based take estimate appropriately reflects and acknowledges the 
monitoring and mitigation efforts, including the placement of three 
PSOs on the pile driving platform and dedicated PSOs vessel(s) and PAM.
    Comment 3: A commenter indicates that estimated take by Level B 
harassment for common dolphins should not be adjusted per the AMAPPS 
average group size (30 dolphins), but rather per the PSO data collected 
by Vineyard Wind 1 during HRG surveys (10 dolphins) as this PSO data is 
more appropriate. The commenter further notes that there is no 
information indicating that Vineyard Wind 1 had difficulty staying 
within the take limits for common dolphins for the 2023 IHA.
    Response: NMFS disagrees that an average group size estimate of 10 
for common dolphins, based upon local PSO data, is more appropriate for 
adjusting the estimated take by Level B harassment for common dolphins 
than the AMAPPS group size of 30. The commenter references PSO data 
collected by Vineyard Wind 1 during HRG surveys, yet does not provide 
detail on the PSO report(s) upon which this data is based upon. The 
most recent Vineyard Wind 1 PSO report describes sighting 29 groups and 
a total of 717 common dolphins during the 2023 construction period, 
with an average group size of 24.7 dolphins (RPS, 2024). This estimate 
closely aligns with the average group size of 30 common dolphins from 
the AMAPPS dataset (Palka et al., 2017; 2021), which NMFS has 
determined to be the best available data and most robust dataset for 
adjusting take estimates due to the standardized consistent effort and 
large dataset sample size. The large sample size contained in the 
AMAPPS dataset accounts for any variability in group size that may 
occur between observed common dolphin groups. Therefore, NMFS has 
determined that the AMAPPS average group size of 30 is most appropriate 
for adjusting take by Level B harassment for common dolphins in this 
analysis.
    Comment 4: Multiple commenters suggest that NMFS should consider 
exposure to noise from vessel propulsion, thrusters, and jet trenching 
with scour protection as constituting behavioral harassment or that 
NMFS should undertake an analysis identifying the potential for take by 
Level B harassment from operating offshore wind construction vessels, 
including the use of dynamic positioning (DP) thrusters, and jet 
trenching, and scour protection.
    Response: NMFS analyzed the potential for various sources of noise 
to result in take of marine mammals and concludes that take from vessel 
propulsion, DP thrusters and jet trenching during Vineyard Wind 1's 
activities is not likely. Further, as noted below in Comment 5, 
mitigation requirements to further lessen any potential for impacts are 
included. On July 29, 2024, Vineyard Wind 1 confirmed to NMFS that 
scour protection activities are complete for the project and therefore 
this activity is not discussed further.
    On a typical foundation, WTG, and inter-array cable installation 
day, Project vessels within and around the Lease Area may include a 
heavy lift pile installation vessel (the Orion), two Big Bubble Curtain 
(BBC) support vessels, two safety vessels, two crew transfer vessels, 
two accommodation vessels, one jack-up vessel installing monopile 
foundations, one pipe-burying vessel installing array cables, and one 
service operating vessel supporting foundation installation. During 
pile driving operations with favorable weather conditions, the Orion 
thrusters typically operate at approximately 25 percent capacity with a 
maximum capacity (1100 kW/4,500 kW). Thrusters may operate at higher 
capacity during higher wind speeds, waves, and currents.
    In general, the Orion would be positioned at each pile driving 
location until after the pile is installed, after which time it would 
slowly transit at 10 kn (11.5 mph) or less (per the Construction and 
Operations Plan (COP) condition that vessels within the wind 
development area must travel at 10 kn (11.5 mph) or less at all times) 
to the next site. Because operating thrusters is inefficient with 
respect to cost due to fuel usage, the thrusters are typically engaged 
only when necessary to maintain position at the pile site or for safety 
reasons (e.g., during rough weather).
    Inter-array cables would be buried using a jet trencher. Noise 
emitted by jet trenching activities is broadband and generally 
consistent with that produced from routine vessel operations (Nedwell 
et al., 2003).
    NMFS' generalized 120-dB acoustic threshold for exposures to 
continuous noise is guidance to help predict when marine mammals will 
likely respond in a manner that constitutes Level B harassment and 
estimate how many marine mammals are likely to respond

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in that manner; contrary to the suggestion of the commenter, it is not 
something that NMFS needs to ``enforce.'' As described in the proposed 
IHA notice, NMFS generally predicts that marine mammals are likely to 
be affected in a manner considered to be Level B harassment when 
exposed to underwater anthropogenic noise above 120 dB (RMS SPL) for 
continuous sources (e.g., vessel noise considered here). However, 
contextual factors and qualitative parameters play an important role in 
determining the potential for take and should be considered as well 
when determining the likelihood of incidental take. As described in the 
proposed IHA notice, the potential for behavioral response to an 
anthropogenic source can be highly variable and context-specific 
(Ellison et al., 2012). In addition to received sound level, factors 
such as activity state, the novelty of a sound, and distance between 
the sound source and the receiver may influence whether an animal 
exhibits a behavioral response (Ellison et al., 2012). As NMFS has 
previously articulated, there are situations in which other contextual 
factors may appropriately support a determination that take is 
unlikely, even if an animal is exposed to levels above the behavioral 
harassment threshold.
    NMFS acknowledges that, in limited cases, take of marine mammals by 
Level B harassment has been authorized incidental to vessel-related 
activities such as tugging and positioning activities that emit 
continuous noise into the underwater environment for extended periods 
of time (e.g., 87 FR 62364, October 14, 2022). However, in recent cases 
where NMFS authorized take for these activities, the take was requested 
by an applicant and NMFS made a case-specific decision based on the 
specific circumstances, explaining the conservative nature of the 
analysis and/or discussing specific factors other than the received 
level alone that contributed to the decision. In the cited case, for 
example, NMFS considered the potential for Level B harassment from 
tugging and positioning activities in a concentrated area for an 
extended period of time, in an area inhabited by a small resident stock 
of marine mammals in a fairly enclosed body of water (Cook Inlet), and 
authorized take, by Level B harassment, for tugging and positioning 
activities.
    While NMFS recognizes elevated noise levels from vessels, the 
determination of whether harassment occurs in response to exposure to 
activities other than pile driving is based on several factors. 
Monitoring reports received under earlier take authorizations show few, 
if any, behavioral responses during activities involving thruster use 
and other broadband or continuous construction noises similar to noise 
levels at or below typical vessel levels. For example, during the 
Neptune Liquefied Natural Gas (LNG) pipeline operations project in 
Massachusetts Bay from July 1, 2009, through June 30, 2010, twenty-six 
marine mammals were sighted, and twenty of these marine mammals entered 
the Level B harassment zone while construction activities, including 
thruster use, were taking place. None of the marine mammals observed 
within the Level B harassment zone exhibited ``any modifications to 
their behavior that could be directly and definitively related to the 
construction activities'' (ECOES Consulting, Inc., 2010). In 2015, 
Northeast Gateway L.P., (Northeast Gateway) requested take by Level B 
harassment incidental to Deepwater port repair activities occurring in 
Massachusetts Bay, including active use of DP thrusters. NMFS 
authorized the requested take incidental to the specified activities. 
The only two marine mammal sightings that occurred during the effective 
period of the authorization took place while vessels were actively 
using thrusters, and no behaviors that would suggest harassment were 
observed (TetraTech, 2017).
    NMFS acknowledges that noise emitted by Vineyard Wind project-
related vessels and their DP thrusters, as well as jet trenching 
activities, may sometimes result in marine mammals being exposed to 
received levels above 120 dB and that vessel noise impacts the 
soundscape. However, as described in the Behavioral Effects section of 
the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat of the proposed IHA notice, the likelihood of Level B 
harassment is not based upon received level alone. There are a variety 
of studies (Nowacek et al., 2004; Kastelein et al., 2012 and 2015) 
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). Nowacek et 
al. (2004) found that North Atlantic right whales exposed to alert 
signals and approaching vessel sounds exhibited a variety of responses. 
While 5 of the 6 whales altered their behavior in response to the alert 
signal, the whales did not exhibit a response to a vessel noise 
recording which simulated a 120 m container ship passing within 100 
meters (m), equating to approximately 135 dB received level, or the 
noise of transiting vessels passing within 1 nautical mile (nm) from 
the whales (Nowacek et al., 2004). During Vineyard Wind 1's 2023 
construction activities (RPS, 2024), PSOs observed more baleen whales, 
engaged in various activity states, in the Project Area while the 
impact hammer was off (77 detection events) than when it was on (22 
detection events), although multiple vessels and DP thrusters were 
present and likely engaged while the impact hammer was off. These 
observations suggest that noise emitted from vessels, including those 
operating DP thrusters and jet trenching activities, is notably less 
likely to elicit avoidance and other behavioral responses from marine 
mammals that constitute Level B harassment. Given marine mammal 
exposure to extensive vessel traffic in the Atlantic Ocean, including 
from major ports and major shipping lanes near the project site, 
habituation to similar noise from vessels, thrusters, and trenching may 
be expected. As described in the proposed IHA notice, habituation can 
occur when an animal's response to a stimulus wanes with repeated 
exposure, usually in the absence of unpleasant associated events 
(Wartzok et al., 2003) as is typically considered the case with 
exposure to noise from vessel propulsion, noting that the typical 
predictable movement and operation of vessels also influences the lower 
likelihood of behavioral disturbance. In the case of the Vineyard Wind 
1 Project, the marine mammal species potentially affected by the 
project inhabit areas subject to very high, consistent ship traffic 
(Hatch et al., 2008; Van Parijs et al., 2023).
    Based on the available data, project-related vessels, including 
those operating thrusters, are not significantly louder than large 
cargo vessels marine mammals in the project area are accustomed to 
encountering. The median rms sound pressure level (SPL) measured at a 
range of 750 m from the piling (the Orion), and support vessels prior 
to pile driving of the first 13 piles from the Vineyard Wind 1 2023 
construction activities measured approximately 134 dB (K[uuml]sel et 
al., 2024 Nedwell et al. (2003) backcalculated SPL source levels for 
jet trenching activities to be 178 dB, assuming a propagation loss of 
22logR and recording 160 m from trenching activity. A reasonable 
estimate for source level of a container ship, estimated from the bulk 
data of MacGillivray and de Jong (2021), is approximately 180 dB. Using 
practical spreading, this source level yields

[[Page 75660]]

approximately 137 dB at a range of 750 m.
    Although lack of detected behavioral disruption during previous 
monitoring described above does not prove there are no undetected 
responses that may qualify as Level B harassment, these findings 
clearly suggest that marine mammals continue their regular behavior 
patterns in the presence of vessels, including those operating DP 
thrusters for the project. In consideration of the discussion above, we 
conclude that exposure to vessel noise for this Project, including from 
DP thrusters and trenching activities, is not likely to result in Level 
B harassment simply based on exposure above the 120 dB threshold.
    Comment 5: Commenters suggest the NMFS should mitigate for 
behavioral take that may occur incidental to exposure to noise from 
vessels, thrusters, and trenching that exceed NMFS' behavioral 
harassment threshold for continuous noise (120 dB rms).
    Response: As described in Comment 4, NMFS disagrees that exposure 
to vessel noise from the Project, including from DP thrusters and 
trenching activities, is likely to result in take under the MMPA (see 
response to Comment 4 above). However, NMFS does agree that vessel 
quieting, in general, is an important tool for protecting marine 
species and acoustic habitat. Vineyard Wind has committed to minimally 
use DP thrusters such that unnecessary use of thrusters and emission of 
continuous noise into the underwater environment is avoided. In 
addition, Vineyard Wind is required to abide by any existing vessel 
speed regulations as well as vessel strike avoidance measures in the 
IHA. When vessels are required to maintain a 10 knot (kn) (11.5 mph) 
speed restriction (see Vessel Strike Avoidance Measures in the 
Mitigation section), continuous noise released into the environment 
from the vessels is also reduced. The relationship between vessel speed 
and its associated underwater radiated noise is well established and it 
is generally assumed that noise levels depend on vessel speed as 60 
log10(V) (MacGillivray and de Jong, 2021), where V is the vessel speed. 
Further, speed limitations have been shown to be an effective tool in 
mitigation, as even small speed reductions of many vessels are capable 
of substantially reducing noise impacts to marine mammals (Findlay et 
al., 2023).
    Comment 6: Commenters note that it is inappropriate for Vineyard 
Wind 1 to estimate its own impacts, analyze its own impacts, and then 
restrict IHA public document estimates to what it has determined to be 
appropriate.
    Response: NMFS disagrees that the process of Vineyard Wind 1 
estimating and analyzing impacts of the proposed construction activity 
is inappropriate. 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), as well as 
an analysis of the impacts of the activity on marine mammal species or 
stocks and their habitat. Thus, the ``specified activity'' for which 
incidental take coverage is being sought under section 101(a)(5)(D) is 
generally defined and described by the applicant. NMFS evaluates the 
applicant's analysis using the best available information and makes the 
necessary findings and determinations on how the proposed activities 
may impact marine mammals, their habitats, and availability of marine 
mammals for subsistence uses, if relevant. As indicated in the proposed 
IHA, based on our independent evaluation, NMFS concurred with the 
analysis methods and results presented by Vineyard Wind 1 and carried 
them forward in the proposed IHA. NMFS is required to post proposed 
IHAs for public comment in addition to supporting information. NMFS 
also posts all monitoring reports (including any past monitoring 
reports for past authorizations) on our website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. As the required 
documentation mentioned above has been posted for the Vineyard Wind IHA 
request, NMFS disagrees that ``IHA public documents'' have been 
restricted.
    Comment 7: Commenters request that the pile driving noise model, 
with all assumptions, be made public along with any technical 
information relevant to the initial noise exceedances during pile 
driving in 2023.
    Response: Relevant information on how the pile driving noise model 
works, assumptions, and technical information related to sound field 
verification (SFV) results were publicly available. Of note, only the 
modeled distances to the Level A harassment thresholds were applied to 
this IHA; the distance to the Level B harassment threshold is based on 
in situ data collected during foundation installation in 2023. A 
description of the pile driving source and propagation models used to 
estimate distances to PTS thresholds was made publicly available as an 
appendix within the Vineyard Wind 1 Construction and Operations Plan 
(COP), in the form of an acoustic modeling report (Pyc et al., 2018) 
and is available online as Appendix III in the COP at: https://www.boem.gov/sites/default/files/renewable-energy-program/State-Activities/MA/Vineyard-Wind/Vineyard-Wind-COP-Volume-III-Appendix-III-M.pdf. While source and propagation models are proprietary (most 
developed by JASCO) and not available to the public, Appendix A of Pyc 
et al. (2018) includes references describing their theory of 
calculation. Technical information and results related to SFV conducted 
during pile driving in 2023, upon which the Level B threshold analysis 
for the current IHA is based, are also publicly available on NMFS' 
website.
    Comment 8: Commenters indicate that NMFS and Vineyard Wind 1 have 
underestimated both impulsive and continuous noise levels and suggest 
that the actual exposure to noise levels from pile driving is greater 
than NMFS acknowledges in its existing protective measures. Commenters 
request that NMFS conduct a reassessment of RMS computation methods.
    Response: NMFS disagrees with the commenters that noise levels are 
underestimated and a reassessment of RMS computation methods is 
necessary. NMFS continuously assesses its analysis based on new 
science, including acceptable and ideal methods for calculating 
underwater sound metrics. Our current methodology is to use a 90 
percent energy window for computing RMS sound pressure levels for 
impulsive sources (Madsen, 2005). The 90 percent energy envelope used 
by NMFS is a commonly used convention (Merchant et al., 2015), and is 
even stated as the recommended energy window in the ISO standard 
`Underwater acoustics--Measurement of radiated underwater sound from 
percussive pile driving' (ISO 18406, 2017). Importantly, the distance 
to the Level B threshold is based upon in situ SFV measurements, and 
not modeling. Finally, there is no take expected or authorized from 
continuous sources.
    Comment 9: A commenter notes that condition 3(b) of the proposed 
IHA indicates that no take by Level A harassment is authorized, 
however, proposed take by Level A harassment is listed for species in 
table 1.
    Response: NMFS appreciates the commenter's recognition that take by 
Level A harassment was included in table 1 yet not described in 
condition 3(b) of the IHA. This inconsistency has been corrected in the 
final IHA.

[[Page 75661]]

Mitigation

    Comment 10: Multiple commenters stated that bubble curtains are not 
an efficient mitigation measure as bubble curtains do not attenuate 
sounds at lower frequencies and therefore are not effective in 
preventing take by Level A harassment of North Atlantic right whales. A 
commenter further indicated that this lack of mitigation should be 
incorporated into take calculations. Commenters also cite seabed 
refraction as a mechanism for sound to circumvent bubble curtains and 
impact marine mammals, thus resulting in the use of bubble curtains 
being insufficient as a mitigation measure. Commenters further note 
that since bubble curtains will be used as a mitigative measure yet are 
not effective for mitigation, NMFS will not be able to measure impacts 
to ESA-listed baleen whale species.
    Response: In the Federal Register notice for the proposed IHA (89 
FR 31008, April 23, 2024), NMFS described the best available science, 
which supports the assumption that attenuation can be reliably achieved 
using noise attenuation systems such as a double bubble curtain. The 
commenters indicated that sound may circumvent bubble curtains (such as 
through seabed refraction), citing Rand (2023). 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. 
While it is true that performance diminishes significantly at lower 
frequencies (<32 Hz), those bands also contain significantly less pile 
driving sound and are 16+ dB outside the most susceptible frequency 
range for low-frequency cetaceans. NMFS agrees that a fraction of the 
sound does travel through the sediment and rejoin the water column 
beyond the extent of the bubble curtain, and therefore is not 
attenuated by the bubble curtain. NMFS is not aware of any noise 
mitigation system available which directly deals with sediment-borne 
noise. Despite this limitation, bubble curtains have been shown to be 
highly effective in mitigating sound in the water column (Bellmann, 
2021; Caltrans, 2020).
    Comment 11: One commenter notes that while the proposed IHA 
includes language about soft starts as a mitigation measure, there is 
no evidence for the efficacy of this measure. The commenter further 
notes that the Vineyard Wind 1 Biological Opinion states that there is 
insufficient evidence that the soft start measure would alter take 
estimates.
    Response: NMFS disagrees with the commenter that there is no 
evidence for the efficacy of soft start as a mitigation measure, and 
also notes that the soft start measure was not used as a basis for 
altering take estimates. A soft start, in which an initial set of 
hammer strikes is performed at a reduced energy level, is designed to 
provide a warning to marine mammals and a chance to leave the pile 
driving area before the hammer begins operating at full capacity. The 
soft start method has been found to reduce the cumulative sound 
exposure of animals in an area (Ainslie and von Benda-Beckmann, 2012). 
Ainslie and von Benda-Beckmann (2012) modeled the efficacy of the soft 
start method and found that soft start can be an effective mitigation 
measure when the animals respond to the sound source by swimming away. 
Various species of marine mammals have been observed to behaviorally 
respond to soft starts (also called ramp-ups) such that the risk of PTS 
and TTS is decreased (e.g., Stone et al., 2017) and modeling studies 
have demonstrated similar effectiveness (von Benda Beckmann, et al., 
2013). As described in the Potential Effects of Specified Activities on 
Marine Mammals and their Habitat in the Federal Register notice of the 
proposed IHA, marine mammals may avoid areas of impact pile driving 
(e.g., Tougaard et al., 2009; D[auml]hne et al., 2013; Thompson et al., 
2013; Russell et al., 2016; Brandt et al., 2018).
    Also, the Biological Opinion specifies that while NMFS is ``not 
able to predict the extent to which the soft start will reduce the 
number of whales exposed to pile driving noise or the extent to which 
it will reduce the duration of exposure. Therefore, while the soft 
start is expected to reduce effects of pile driving, we are not able to 
modify the estimated take numbers to account for any benefit provided 
by the soft start.'' This language appropriately expresses the expected 
benefits of soft start, while acknowledging that they are difficult to 
quantify, which is why there are no adjustments to take numbers based 
on the fact that soft start is required.
    Comment 12: Multiple commenters cite the Rand Acoustics report 
(Rand, 2024) as calculating acoustic impacts greater than estimated by 
Vineyard Wind 1 and indicating the need for larger clearance zones. 
Rand Inc., (2024) asserts that pile driving noise rivals the loudness 
and frequency range of seismic air gun arrays. Commenters claim that 
the proposed clearance and shutdown zones are insufficient to 
effectively reduce impacts to marine mammals because sound exposure, in 
terms of impulsive and continuous noise levels, is underestimated. 
Commenters indicate that more research on marine mammal avoidance of 
impulsive sound should be incorporated into the analysis to determine 
how to expand mitigation zones, and that the current mitigation zones 
for endangered species are not large enough. One commenter further 
notes without justification that all mitigation zones, as well as 
clearance and shutdown procedures, proposed for North Atlantic right 
whales should be applicable to all endangered marine mammal species, 
specifically the sperm whale, fin whale, and sei whale.
    Response: NMFS reviewed the Rand Inc. (2024) report and found that 
the initial modeling done for Vineyard Wind 1 considered source levels 
reasonably consistent with both Rand's results and the Vineyard Wind 1 
2023 SFV report. The extensive measurements performed during the 2023 
IHA for Vineyard Wind 1 construction allowed NMFS an opportunity to 
review data collected at several distances from the source. Based on 
those data, NMFS has determined that the distances to the Level A and 
Level B harassment thresholds (and any associated mitigation zones) 
during the 2024 Phase 2 pile installation activities are reasonable 
estimates based on the best available science. The results show that 
for Level A harassment, the model predicted acoustic ranges were on 
average conservative. Therefore, considerations related to Level A take 
based on the initial modeling were validated by the 2023 SFV campaign. 
For Level B, the IHA analysis here was based directly on applicable 
measurements from the 2023 campaign. Thus, with regard to impact pile 
driving, NMFS's acoustic ranges and take estimates are well supported 
by extensive field measurements, are consistent with the data presented 
in Rand (2024), and therefore do not warrant revisions.
    NMFS disagrees that expanded shutdown and clearance zones are 
necessary under the least practicable adverse impact standard for 
marine mammal species or stocks, including those listed under the ESA. 
As described in the Proposed Mitigation section in the Federal Register 
notice for the proposed IHA and the Mitigation section of this notice, 
there is a required shutdown if a North Atlantic right whale is 
visually observed at any distance or acoustically detected within the 
10 km PAM monitoring zone. In

[[Page 75662]]

addition, impact pile driving may not begin if a North Atlantic right 
whale is visually sighted or acoustically detected within the pre-start 
clearance zone at any distance during the 30-minute clearance period. 
NMFS neither anticipates nor authorizes any take by Level A harassment 
of North Atlantic right whales.
    Some mitigation measures in the IHA are centered around North 
Atlantic right whales because of the species status and general fitness 
of individuals. NMFS acknowledges that seasonal closures are based on 
North Atlantic right whale densities and that the maximum density 
months for other ESA-listed species may occur outside of the seasonal 
closures. Other enhanced mitigation for North Atlantic right whales 
includes delaying or shutting down pile driving should a North Atlantic 
right whale be observed at any distance by a foundation installation 
PSO or acoustically detected within the PAM monitoring zone. If 
clearance and shutdown zones were increased for other ESA-listed 
species, it would result in longer construction time frames, prolonging 
the time periods over which marine mammals may be exposed to 
construction-related stressors, as well as creating impracticable 
operational scenarios for the applicant. It has been modeled and is 
logical that projects should be constructed as quickly as possible 
during times when the potential for a species of concern to be present 
is lowest (Southall et al. 2021). Accordingly, NMFS has determined that 
the current clearance and shutdown zones together with other mitigation 
measures effect the least practicable adverse impact on the affected 
species or stocks of marine mammals.
    Comment 13: A commenter states that the proposed shutdown 
procedures are not strict enough and should be more comparable to oil/
gas authorizations that require shutdown for live marine mammal 
strandings and ``millings within 50 km of survey operations.''
    Response: NMFS agrees that the addition of the measure the 
commenter recommended is appropriate and has added a measure to the IHA 
for Vineyard Wind 1 to cease pile driving in the event of a live 
cetacean stranding (or near-shore atypical milling) event within 50 km 
of the pile driving operations, where the NMFS Marine Mammal Stranding 
Network is engaged in herding or other interventions to return animals 
to the water.
    Comment 14: While commenters acknowledge that time of year 
restrictions on pile driving are effective mitigation measures, 
multiple commenters suggested that the proposed seasonal restrictions 
are insufficient as the restriction period does not account for North 
Atlantic right whales, sperm whales, and fin whales in the Project Area 
outside of those months. Commenters further note that endangered marine 
mammal species are present in the Project Area year-round, especially 
North Atlantic right whales during the late summer.
    Response: NMFS has restricted foundation installation pile driving 
from January through May, which represents the period when North 
Atlantic right whales are most likely to be in the Project Area in 
higher numbers and engaged in foraging behavior. A commenter indicated 
that the seasonal restriction period of January through May does not 
account for the heightened presence of North Atlantic right whales in 
southern New England during the late summer (Quintana-Rizzo et al., 
2021). However, North Atlantic right whale presence during the summer 
is typically closer to Nantucket Shoals (Quintana-Rizzo et al., 2021; 
Van Parijs et al., 2023) and not concentrated within the lease area or 
the LIA. In addition, North Atlantic right whale densities are highest 
in the lease area and LIA from January through May (Roberts et al., 
2023), further supporting that period as an appropriate time frame for 
implementing seasonal restrictions for North Atlantic right whales. 
NMFS acknowledges that seasonal closures are based on North Atlantic 
right whale densities and the maximum density months for other ESA-
listed species, such as fin whales and sperm whales, and stocks 
experiencing UMEs, such as minke whales, may occur outside of the 
seasonal closures (table 9). However, no UMEs are active for ESA-listed 
marine mammals other than the North Atlantic right whale and there is 
other mitigation for those species. See Comment 12 for additional 
detail on implementing additional mitigation measures for Endangered 
Species Act (ESA)-listed and species and stocks experiencing UMEs.
    Seasonal restrictions are not in place from June through December 
because North Atlantic right whale densities are lower. During those 
months pile driving may take place, Vineyard Wind 1 is required to 
implement mitigation measures during pile driving to reduce impacts to 
marine mammals. These mitigation measures include clearance and 
shutdown zones, visual and acoustic monitoring of zones by PSOs and PAM 
operators, and use of noise attenuation devices to reduce impacts to 
marine mammals. These measures are consistent with those required and 
successfully implemented under previous incidental take authorizations, 
as described in the Mitigation section. Furthermore, VW1 is required to 
establish stronger mitigation measures for endangered species, such as 
fin whales and sperm whales; for example those species have larger 
clearance and shutdown distances than other marine mammals.
    During November and December, Vineyard Wind 1 will be required to 
follow enhanced mitigation measures if impact pile driving occurs. From 
November 1-December 31, if pile driving has been shut down or delayed 
due to the presence of 3 or more North Atlantic right whales, pile 
driving will be postponed until the next day. As December represents 
the highest density month for North Atlantic right whale outside of the 
January through May restriction, Vineyard Wind 1 will be required to 
follow additional enhanced measures beyond those required in November. 
In December, Vineyard Wind 1 must conduct, in addition to PAM, extended 
surveys using the dedicated PSOs vessels prior to starting or resuming 
pile driving as described in their Pile Driving Monitoring Plan. With 
the application of these enhanced mitigation and monitoring measures in 
November and December, impacts to NARW will be further reduced. 
Accordingly, NMFS has determined that the seasonal restrictions, 
together with other mitigation measures, effect the least practicable 
adverse impact on marine mammals.
    Comment 15: One commenter claims that as more research is needed on 
marine mammal hearing, the precautionary principle should be employed 
by expanding mitigation zones, increasing accountability of vessel 
operators to offshore wind vessels, applying more checks and balances 
to those conducting construction activities, and reviewing vessel 
transcripts. The commenter specifically states that limited data on PTS 
onset thresholds as a result of data coming from the same species and/
or same captive animals results in dependent data sets, and requests 
that 6 month moratorium be placed on all east coast wind projects until 
detailed study can be conducted by independent researchers.
    Response: MMPA and its implementing regulations require that IHAs 
be issued based on the best scientific evidence available, if the 
required findings can be made. NMFS agrees with the commenter that 
additional research will continue to improve our understanding of the 
impacts of anthropogenic noise on marine mammal hearing, yet disagrees

[[Page 75663]]

that expanded mitigation and monitoring measures or a moratorium on 
east coast wind projects are necessary under the least practicable 
adverse impact standard. See Comment 26 for details on data related to 
PTS onset thresholds. The IHA includes general conditions to hold 
Vineyard Wind 1 and its designees (including vessel operators and other 
personnel) accountable while performing operations under this IHA. In 
addition to requiring Vineyard Wind 1 to abide by vessel strike 
avoidance measures and a NMFS-approved marine mammal vessel strike 
avoidance plan, Vineyard Wind 1 is also required to equip all vessels 
with properly installed, operational Automatic Identification System 
(AIS) device and report all Maritime Mobile Service Identity (MMSI) 
numbers to NMFS. See Comment 12 for additional detail on expanding 
mitigation zones. The required mitigation and monitoring measures 
described in the Federal Register notice for the proposed IHA and this 
notice were designed based upon the best available science. In terms of 
a moratorium on east coast wind projects, it is beyond the scope of 
NMFS' authority to place a moratorium on these projects as NMFS only 
authorizes marine mammal take incidental to an activity (provided we 
make the necessary findings) and not the activity itself.
    Comment 16: One commenter notes that the vessel speed restriction 
of traveling a maximum of 10 kn (11.5 mph) does not apply to crew 
transfer vessels. The commenter suggests that these restrictions should 
apply to crew transfer vessels as these vessels undertake the majority 
of project trips.
    Response: NMFS agrees with the commenter that the vessel speed 
restriction of traveling a maximum of 10 kn (11.5 mph) should apply to 
all project vessels in a transit corridor if PAM is not used to monitor 
the transit corridor. NMFS included this measure in the Federal 
Register notice for the proposed IHA as well as the final IHA.
    Comment 17: A commenter notes that the IHA should be more specific 
in defining the vessel transit corridor.
    Response: NMFS appreciates the commenter's request to define the 
vessel transit corridor. The transit corridor is defined as the route a 
vessel takes from a port to the lease area and return. This definition 
is provided in the Vessel Strike Avoidance Measures section of this 
Federal Register notice as well as condition 5(b)(viii) of the IHA.

Monitoring, Reporting, and Adaptive Management

    Comment 18: Multiple commenters claim that NMFS should require 100 
percent on board agency enforcement coverage during the proposed 
Vineyard Wind 1 construction activities instead of allowing self-
reporting and self-verification of acoustic impacts by Vineyard Wind 1, 
specifically regarding critically endangered species. The commenters 
further note that NMFS should require enforcement personnel on board 
project vessels or camera coverage of all offshore wind activity with 
camera footage that is reviewed by NOAA's Office of Law Enforcement 
(OLE). In order to verify that Vineyard Wind 1 adheres to all sound 
attenuation measures, a commenter further recommends that NMFS place an 
Office of Protected Resource ``observer'' on the vessel to confirm 
sound attenuation for each monopile. A commenter also suggests that 
NMFS hire a third-party safety officer to observe pile driving, confirm 
pile refusal or use of lower hammer energies, and create a safety plan 
for PSOs and PAM operators in the event of pile refusal.
    Response: The IHA requires multiple mitigation and monitoring 
measures to effect the least practicable adverse impact on affected 
species or stocks of marine mammals, as well as extensive reporting 
requirements that document compliance and observed marine mammal 
responses to the activities by independent NMFS-approved PSOs. In terms 
of vessel strike avoidance measures, NMFS maintains an Enforcement 
Hotline for members of the public to report violations of vessel speed 
restrictions. While it is beyond the scope of 101(a)(5)(D) of the MMPA 
to include requirements of NMFS OLE personnel, the IHA includes two 
provisions related to the commenters recommendation: one states that by 
accepting the issued IHA, Vineyard Wind 1 consents to on-site 
observation and inspections by Federal agency personnel (including NOAA 
personnel) during activities this IHA covers, for the purposes of 
evaluating the implementation and effectiveness of measures contained 
within the IHA; the other states that 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 and indicates that personnel may 
report any violations to the NMFS Office of Law Enforcement.
    NMFS is also not requiring additional observers to ``confirm sound 
attenuation'' for each monopile. As described in both the Federal 
Register notice for the proposed IHA and this notice, NMFS has included 
requirements for sound attenuation methods that were previously 
evaluated in SFV measurements conducted during Vineyard Wind 1 
construction activities in 2023. Further, additional in situ SFV 
measurements will be conducted to ensure that sound levels are at or 
below those modeled (assuming 6 dB attenuation for Level A harassment) 
or those measured and expected (for Level B harassment) in 2023. In 
addition, Vineyard Wind 1 will be required to follow specific protocol 
when conducting SFV measurements, as described in conditions 5(a)(xvi-
xxi) in the IHA, and report SFV measurements to NMFS Office of 
Protected Resources within 48 hours of each foundation installation as 
well as on a weekly, monthly, and annual basis. Frequent reporting will 
ensure that NMFS is aware of any threshold exceedances and the measures 
Vineyard Wind 1 would be implementing to ensure the Level A and Level B 
harassment isopleths do not exceed those modeled or expected for 
foundation installation.
    Comment 19: One commenter expressed concern that NMFS should hold 
Vineyard Wind 1 accountable for maintaining sound levels during 
construction activities. The commenter further noted that submitting 
final SFV measurements within 90 days of completing SFV is not 
acceptable and removes accountability from Vineyard Wind1. The 
commenter suggested that NMFS should require Vineyard Wind 1 to 
complete the final results of SFV measurements within 48 hours of pile 
driving completion for each pile, instead of 90 days, and future piles 
should be dependent upon completion, review, and NMFS acceptance of 
daily SFV reports. Another commenter suggested that each monopile 
should be required to have its own SFV measurements registered 
throughout pile driving with a NMFS observer who can monitor and stop 
by pile driving, if necessary, until attenuation is achieved.
    Response: NMFS agrees with the commenters that Vineyard Wind 1 
should be held accountable for maintaining agrees with the commenters 
that Vineyard Wind 1 should be held accountable for maintaining the 
sound levels analyzed for the IHA during construction activities, 
though, as described above in Comment 18, while

[[Page 75664]]

it is possible to measure the overall sound levels that include the 
NAS, there is no way to specifically confirm a 6-dB sound reduction as 
compared to an unattenuated pile. In situ measurements will continue to 
be conducted to verify sound levels are at or below those modeled or 
measured, as specified.
    Although NMFS requires a SFV report to be submitted within 90 days 
of activity completion, NMFS also requires Vineyard Wind 1 to review 
SFV results within 24 hours and submit weekly, monthly, annual, and 
situational reports. As described in the Federal Register notice for 
the proposed IHA and this notice, Vineyard Wind 1 is required to 
provide the initial results of the SFV measurements to NMFS in an 
interim report after each foundation installation event as soon as they 
are available and prior to a subsequent foundation installation, but no 
later than 48 hours after each completed foundation installation event. 
In addition, each monopile must be acoustically monitored either using 
thorough SFV or abbreviated SFV. Again, it is not known if attenuation 
is achieved until results are reviewed within 24 hours, however, if SFV 
measurements exceed those distances that are modeled (Level A 
harassment) or measured (Level B harassment), Vineyard Wind 1 must 
notify NMFS and implement mitigative measures, as described in 
condition 5(a)(xxi) of the IHA.
    Comment 20: A commenter claims that it is insufficient to visually 
and acoustically monitor for marine mammals for only 1 hour prior to 
beginning construction activities. Another commenter further indicates 
that NMFS should require two active PAM operators (instead of one) to 
increase situational awareness and active monitoring of hydrophones 
during the 60 minute pre-start clearance period.
    Response: NMFS agrees with the commenter that monitoring more than 
one hour prior to beginning construction is appropriate. In addition to 
a 60 minute pre-start clearance period for visual observation and the 
requirement for PAM operator(s) to actively monitor hydrophones for 60 
minutes prior to commencement of construction activities, both the 
proposed and final IHA include a requirement that Vineyard Wind 1 must 
also review PAM data collected for at least 24 hours in advance of pile 
driving activity to increase situational awareness of marine mammals in 
the area. Davis et al. (2023) found that by increasing pre-construction 
acoustic monitoring from 1 hour to 18 hours increased the likelihood of 
detecting a North Atlantic right whale from 4 percent to 74 percent.
    At least one PAM operator is required to actively monitor and 
review PAM data from at least the past 24 hours to increase situational 
awareness. However, the number of active on-duty PAM operators must be 
sufficient to meet the requirements of the IHA. Vineyard Wind 1 is 
required to submit a PAM Plan for NMFS approval, which will specify the 
planned number of PAM operators that would be active to meet the IHA 
requirements.
    Comment 21: Commenters claim that PSOs have poor detection 
capabilities and should not be relied upon for monitoring, most notably 
in low visibility conditions. A commenter cited the Williams et al. 
(2016) study, specifically noting that in the ``worst visibility 
conditions'' PSO detection probability was near zero at 1,000 m and did 
not exceed 50 percent until the distance is less than about 500 meters. 
The same commenter also indicated that the ``overall efficacy of PSOs 
is approximately 9 percent in detection'' and the ``overall efficacy'' 
of PAM ``is approximately 25 percent.'' A commenter further claims that 
PAM and low visibility equipment (i.e., night vision goggles, infrared 
devices) proposed for monitoring are not effective and offer unreliable 
rates of detection, citing that PAM as a monitoring tool includes 
numerous limitations such as detecting marine mammals when they are not 
actively vocalizing and vocalizations of sufficient magnitude.
    Response: NMFS disagrees that monitoring using a combination of 
PSOs and PAM will not be effective at detecting marine mammals. As 
described in the Federal Register notice for the proposed IHA, NMFS is 
requiring that Vineyard Wind 1 employ both visual and PAM methods for 
monitoring. Visual and PAM approaches are well understood to provide 
best results when combined together (e.g., Barlow and Taylor, 2005; 
Clark et al., 2010; Gerrodette et al., 2011; Van Parijs et al., 2021). 
The use of PAM will augment visual detections for foundation pile 
driving, especially for activities with the largest zones. NMFS is 
requiring the use of PAM to monitor 10 km zones around the piles and 
that the systems be capable of detecting marine mammals during pile 
driving within this zone. For these reasons, NMFS finds that the suite 
of visual and acoustic monitoring measures in the Federal Register 
notice for the proposed IHA and carried forward in the IHA are based on 
the best available scientific information and are effective at 
detecting marine mammals.
    We recognize that the distances at which marine mammals may be 
observed are both species and weather dependent. The commenter relies 
on Williams et al. (2016), in claiming that PSO detection probability 
was near zero at 1,000 m, however, this detection probability was based 
upon monitoring during poor visibility conditions. As visibility 
conditions improved during the study, PSO detection probability 
increased. Under this IHA, Vineyard Wind 1 is required to conduct 
monitoring in a manner such that PSOs can visually monitor an area no 
smaller than the minimum visibility zone (4,000 m; 13,123 ft). Pile 
driving may not occur in any conditions (including poor visibility 
conditions such as fog, rain, or darkness) if PSOs are not able to 
sight marine mammals in this minimum visibility zone out to this 
distance. During construction of Vineyard Wind 1 in 2023 and South Fork 
Wind, PSOs observed baleen whales at ranges as distant as 4 km (13, 123 
ft) and 23 km (75,459 ft), respectively (RPS, 2024; South Fork Wind, 
2024). The commenter did not provide evidence to support claims the 
minimum visibility zone could not be effectively monitored during good 
weather conditions, and NMFS disagrees with the commenters that, during 
good weather conditions, Vineyard Wind 1 would not be able to 
effectively monitor the minimum visibility zone.
    NMFS recognizes that visual detection may not be 100 percent 
effective. Animals may be missed because they are underwater (i.e., 
availability bias) or because they are available to be seen but are 
missed by observers (i.e., perception and detection biases) (e.g., 
Marsh and Sinclair, 1989). However, visual observation remains one of 
the best available methods for marine mammal detection.
    The commenter indicates that PAM is limited to only detecting 
animals that are vocalizing, and vocalizations must be of ``sufficient 
magnitude to surmount background noise'' and be detected at the 
receiving station. NMFS acknowledges these limitations, however, there 
are a wide variety of PAM systems available on the market (van Parijs 
et al., 2021), ranging from omnidirectional independent acoustic buoys 
to multi-channel hydrophone arrays that are capable of detecting marine 
mammals in real-time. Real-time (or near real-time) stationary and 
mobile PAM systems are currently being used to inform management 
decisions and literature supports the effectiveness of real-time PAM at 
detecting marine

[[Page 75665]]

mammals, including North Atlantic right whales (Ceballos et al., 2022; 
Murray et al., 2022; Baumgartner et al., 2020; Baumgarnter et al., 
2019). In 2023, Vineyard Wind documented 253 acoustic detections of 
protected species during the project (with and in the absence of pile 
driving). Of the detections, 206 detections were unidentified dolphin, 
45 detections of fin whales, and two detections of unidentified baleen 
whales (RPS, 2024). Vineyard Wind 1 is required to submit a PAM Plan to 
NMFS that demonstrates the system will be able to detect North Atlantic 
right whales at ranges up to 10 km (32,808.4 ft). To date, offshore 
wind developers have used bottom-mounted PAM systems located at 
distance from piles being installed. The final IHA requires the PAM 
system be placed no closer than 1 km (3,280.8 ft) from the pile being 
installed to minimize masking of North Atlantic right whale calls by 
construction noise.
    Comment 22: A commenter indicates that all reports of endangered 
species should be logged and reported to NMFS within 24 hours.
    Response: As described in the proposed IHA, Vineyard Wind 1 is 
required to report North Atlantic right whale sightings and acoustic 
detections to NMFS within 24 hours. As mentioned above in Comment 12 
above, some mitigation, monitoring, and reporting measures are focused 
on North Atlantic right whales due to the species status and general 
fitness of individuals. It is not practicable or necessary to require 
Vineyard Wind 1 to report all sightings of endangered species to NMFS 
within 24 hours, unless a detection is of an injured, entangled, or 
dead marine mammal (see Reporting section of Monitoring and Reporting), 
and the commenter does not provide a rationale for the recommended 
change. However, all whale sightings must be reported to vessel 
captains and PSOs. In addition, NMFS is requiring all acoustic and 
visual detections of marine mammals to be submitted in weekly, monthly, 
and annual reports. NMFS disagrees that more frequent reporting of all 
ESA-listed marine mammal species is necessary and considers the 
required monitoring and reporting requirements in the IHA to be robust 
and appropriate.

Effects Assessment

    Comment 23: Multiple commenters have expressed concern for impacts 
of offshore wind construction activities on marine mammal prey. One 
commenter expressed concern specifically regarding impacts to North 
Atlantic right whale prey, such as copepods, due to heat emanating from 
electric cables associated with offshore wind farm development. In 
addition, commenters express concern for operational impacts on North 
Atlantic right whale prey. One commenter indicates that based upon the 
size of the turbines, impacts to North Atlantic right whale prey could 
occur up to 60 miles outside of the Lease Area. Another commenter notes 
that the Federal Register notice for the proposed IHA also does not 
address potential operational impacts to water circulation patterns 
that produce zooplankton aggregations near Nantucket Shoals. The 
commenter claims that due to the overlap between a NOAA conservation 
buffer near Nantucket Shoals and the Project Area, NMFS should not 
issue the IHA to Vineyard Wind 1.
    Response: In the Federal Register notice for the proposed IHA, NMFS 
considered the potential impacts of structures and operational noise on 
marine mammals and their habitat, including prey, based on the best 
available science (see the Potential Effects to Marine Mammal Habitat 
and Potential Effects from Offshore Wind Farm Operational Noise in the 
Federal Register notice for the proposed IHA). NMFS provides further 
analysis of the impacts of turbine operation on marine mammal habitat 
and prey in the Impact on Habitat and Prey section of the Negligible 
Impact Analysis and Determination section of this Federal Register 
notice as well as in the reinitiated Biological Opinion. The commenter 
did not provide scientific evidence that suggests the analysis within 
the Federal Register notice for the proposed IHA was unsupported. NMFS 
has fully evaluated the potential impacts of both issuing this IHA over 
the one-year effective period and the potential impacts from long-term 
operations via the Biological Opinion (BiOp). We refer the reader to 
the Potential Effects of the Specified Activities on Marine Mammals and 
Their Habitat section and the Negligible Impact Determination section 
in the proposed and final IHA notice for further details.
    NMFS is evaluating the effects of authorizing the take of marine 
mammals incidental to pile driving 15 monopile foundations. Vineyard 
Wind operations commenced in 2023 and would be ongoing without 
installation of the remaining piles. BOEM is the agency responsible for 
approving construction and operations of offshore wind farms. Impacts 
to the environment for other project related activities such as sending 
power to shore through buried electric cables was analyzed in BOEM's 
Environmental Impact Study (EIS) for the Project and are outside the 
scope of the NMFS' MMPA decision.
    Comment 24: Commenters claim that due to impacts to the North 
Atlantic right whales, the proposed IHA violates the Endangered Species 
Act (ESA) and reinitiation of consultation indicates that Vineyard Wind 
1 was not compliant with the 2021 IHA. In addition, one commenter 
suggests that all reasons and information necessitating the 
reinitiation of the Vineyard Wind 1 Biological Opinion be made 
available for public comment including an extension to the public 
comment period.
    Response: NMFS disagrees with commenters that the proposed IHA 
violates the ESA or that the reinitiation of the consultation indicates 
that Vineyard Wind was not compliant with the 2023 IHA. On May 23, 
2024, NMFS Office of Protected Resources reinitiated its ESA section 7 
consultation due to consideration of updated marine mammal density data 
which have become available since issuance of the 2023 IHA and analysis 
of SFV data collected by Vineyard Wind 1 during the 2023 construction 
campaign in the analysis for this IHA. NMFS also considered modified 
mitigation and monitoring measures in this analysis. NMFS Greater 
Atlantic Regional Fisheries Office (GARFO) completed its consultation 
on August 23, 2024 and concluded that the proposed actions were likely 
to adversely affect but were not likely to jeopardize the continued 
existence of the North Atlantic right whale, fin whale, sei whale, or 
sperm whale. The reasons and information necessitating the reinitiation 
of the Vineyard Wind 1 Biological Opinion are described in the 
Endangered Species Act section of this Federal Register notice. The 
Federal Register notice for the proposed IHA also described the request 
for reinitiation of consultation. NMFS did not deem extension of the 
public comment period for the proposed IHA necessary or appropriate.
    Comment 25: Multiple commenters claim that NMFS did not evaluate 
the cumulative effects of all projects (e.g., the offshore wind 
projects of other companies) on marine mammals. One commenter claims 
that NMFS should conduct a cumulative impact assessment of all offshore 
wind surveys and construction projects on marine mammals. Another 
commenter further notes that ``dividing and segmenting the estimated 
take analysis for Vineyard Wind 1 across two years provides an 
inaccurate picture of total and cumulative effects'' on North Atlantic 
right whales.

[[Page 75666]]

    Response: NMFS is required to authorize the requested incidental 
take of small numbers of marine mammals of a species or stock by U.S. 
citizens if it finds the total take ``while engaging in that 
(specified) activity'' within a specified geographical region 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 reviewed BOEM's 2021 EIS as part of its inter-
agency coordination and determined that the analysis in the 2021 EIS 
for the Vineyard Wind 1 Offshore Wind Project is sufficient to cover 
the more limited scope of the remaining construction activities for 
this project. The EIS addresses cumulative impacts related to the 
Project and substantially similar activities in similar locations. 
Cumulative impacts regarding the issuance of an IHA for construction 
activities planned by Vineyard Wind 1 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 in NMFS' biological opinion issued 
under section 7 of the ESA following formal inter-agency consultation 
with the NOAA Greater Atlantic Regional Field Office (GARFO). Following 
reinitiated consultation on May 23, 2024, GARFO issued a new BiOp that 
determined that NMFS' issuance of an IHA for construction activities, 
individually and cumulatively, are likely to adversely affect, but not 
jeopardize, listed marine mammals.
    NMFS disagrees that dividing estimated take analysis for Vineyard 
Wind 1 across two years provides an inaccurate picture of cumulative 
effects on North Atlantic right whales. The take authorized in this IHA 
represents a subset of the take authorized under the 2023 IHA and is 
based upon the reduced scope of work remaining for the project. As NMFS 
has determined the 2021 EIS remains appropriate for this analysis, 
cumulative effects on marine mammal species, including North Atlantic 
right whales, are taken into account.
    Comment 26: Citing to new data in Finneran et al. (2023), 
commenters raise questions about the validity of NMFS' current noise 
exposure guidelines for dolphins at frequencies below ~1kHz and how to 
accurately estimate received noise levels from free-swimming animals, 
Commenters recommend NMFS conduct a new analysis and enlarge the 
exclusion and clearance zones for marine mammals, particularly 
bottlenose dolphins and long finned pilot whales. Commenters also 
criticize specific facets of the methodology in NMFS 2018 Revised 
Technical Guidance, suggest the need for additional research, and 
suggested ongoing construction at Vineyard Wind cease or the IHA be 
withdrawn until NMFS updated its PTS/TTS thresholds for mid-frequency 
cetaceans.
    Response: NMFS disagrees that the analysis or mitigation zones for 
marine mammals (and MF species specifically) require adjustments and 
that the IHA process be paused (or withdrawn) until more information is 
known on whether animals will move out of the area or NMFS finalizes 
updates to the 2018 Technical Guidance. Under section 101(a)(5)(D) of 
the MMPA, NMFS is required to issue the IHA if the taking will be for 
small numbers of the affected species or stocks and if NMFS is able to 
make the statutorily required negligible impact finding. Among other 
things, the IHA must prescribe the means of effecting the least 
practicable adverse impact on the affected species or stocks and their 
habitat. All of these standards are based on the best available 
information.
    Our analyses for predicting auditory impacts on marine mammals are 
based primarily on our 2018 Technical Guidance for Assessing the 
Impacts of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2018). 
NMFS is currently in the process of updating that Technical Guidance, 
following a rigorous process involving external peer review, Federal 
agency review, and public comment (89 FR 36762, May 3, 2024). As the 
commenter notes, Finneran et al. (2023) suggests that high-frequency 
cetaceans (formerly classified as mid-frequency cetaceans in our 2018 
Revised Technical Guidance) are more susceptible to noise-induced 
hearing loss below 1 kHz that previously thought, which will likely 
result in a change in the Technical Guidance. However, given the 
rigorous review process to update the Technical Guidance is not 
complete, the future updates are not quantitatively applied to this 
project. We note, however, potential anticipated changes to the 
Technical Guidance would not be expected to change the findings that 
support the issuance of this IHA.
    Regarding some of the specific methodological concerns raised by 
commenters, NMFS disagrees that the use of means and medians is 
inappropriate or that the methodology should be compared to that used 
in the calculation of potential biological removal (PBR). The Technical 
Guidance's methodology is designed to predict the mostly likely 
(realistic) outcome using the central tendencies (means/median) 
associated with the best available science. The intent is not to 
predict the worst-case-scenario by relying on the lowest limits for 
every possible step in the methodology (i.e., Technical Guidance is for 
accurately predicting exposures and not for establishing ``safe 
limits,'' where there is limited to no risk). Further, within the 
development of the criteria, several assumptions were made to address 
uncertainty, including the amount of threshold shift defining TTS onset 
(e.g,. 6 dB threshold shift, which is the minimum threshold shift 
clearly larger than any day-to-day or session-to-session variation) and 
PTS onset (40 dB shift, where there have been no reports of PTS in a 
marine mammal whose initial behavioral threshold shift was 40 dB or 
less) and that there is no recovery between intermittent exposures. 
Regarding the observation that the data upon which the Technical 
Guidance is based are limited in some ways, we do not disagree, but are 
nonetheless charged with basing our analyses on the

[[Page 75667]]

best available information and have described a reasonable methodology 
that does so.
    Contrary to the commenters' assertions, NMFS has not drawn any 
conclusions about TTS based on PSO observations and a commenter 
incorrectly implies that the clearance and shutdown zones in the 
proposed IHA, including the 160-m zone for dolphins, are intended to 
avoid TTS. As described in the Federal Register notice for the proposed 
IHA, NMFS does not quantitatively distinguish Level B harassment in the 
form of direct behavioral disturbance from a disruption of behavioral 
patterns resulting indirectly from TTS, but, rather, notes that the 
predicted takes by Level B harassment could include either. Moreover, 
the distances at which TTS onset is likely are smaller relative to 
those where behavioral disruption without any TTS is expected. 
Regarding the comment related to auditory brainstem response (ABR), 
NMFS disagrees that conclusions in Finneran et al. 2023 cast doubt on 
the NMFS TTS threshold methodology generally for all species. The 
results of Finneran et al. 2023 show that hearing and TTS data, relying 
on behavioral methodology, cannot be directly compared to measurements 
using ABR methods. Finneran et al. 2023 indicate ``Correlation between 
TTS measured behaviorally and with ABRs was weak (figure 13) and ABR-
measured TTS was typically lower and more variable than that measured 
behaviorally for the same exposure'' and later that ``In practice, 
however, ABR measurements in the present study provided only limited 
value.'' While we acknowledge the differences in these two methods in 
predicting TTS onset, especially at lower frequencies, the information 
does not support the commenters assertion that NMFS analysis needs to 
change or that mitigation zones must be enlarged, since, as noted 
above, the analysis already acknowledges that the potential for TTS in 
the quantified takes by Level B harassment and the mitigation zones are 
intended to avoid or minimize PTS, not TTS. Finally, the relationship 
between ABR and behavioral hearing measurements is not relevant to PSO 
observations of behavior.
    Finally, regarding our mitigation under the applicable least 
practicable adverse impact standard, our proposed IHA notice explains 
clearance and shutdown zones are intended to avoid or minimize the 
likelihood of Level A harassment and reduce the severity or likelihood 
of Level B harassment. Importantly, the size of the clearance and 
shutdown zones for all marine mammals s larger than the modeled Level A 
harassment (PTS) distances which, based on SFV data from the 2023 pile 
driving season, is an overestimate. Specifically for mid frequency 
cetaceans, the estimated distance to PTS is 43 m; however, the 
clearance and shutdown zone is set at 160 m due to presence of the 
bubble curtain. For the North Atlantic right whale, the distance to the 
clearance and shutdown zone is independent of both PTS and TTS in that 
they are any distance by PSOs or within 10 km if acoustically detected.
    Comment 27: Multiple commenters urged NMFS to deny the proposed 
project and/or postpone any offshore wind activities until NMFS 
determines effects of all offshore wind activities on marine mammals in 
the region and determines that the recent whale deaths are not related 
to OSW activities. Similarly, some commenters provided general concerns 
regarding recent whale stranding events on the Atlantic Coast, 
including speculation that the strandings may be related to wind energy 
development-related activities. A commenter further states that 
offshore wind construction activities have been linked to marine mammal 
injury and deafness.
    Response: While NMFS acknowledges that offshore wind development 
activities, including HRG survey effort, have increased in the Atlantic 
Ocean during the time period of increased whale strandings, there is no 
scientific evidence that these development activities, such as HRG 
survey effort and turbine construction, are contributing factors to the 
strandings. Further, HRG surveys are not part of the specified 
activity. NMFS does not agree that mortality is an anticipated outcome 
of these specified activities, and there is no evidence to suggest 
otherwise, as described below. Further, the proposed IHA (89 FR 31008, 
April 23, 2024) clearly states that no serious injury and/or mortality 
was requested by Vineyard Wind 1, is expected, or was proposed to be 
authorized.
    The best available science indicates that the anticipated impacts 
from pile driving of turbines potentially include temporary avoidance 
of localized areas, cessation of foraging or communication, TTS, 
stress, masking, etc., (as described in the Effects of the Specified 
Activities on Marine Mammals and their Habitat section in the Federal 
Register notice for the proposed IHA). NMFS emphasizes that there is no 
evidence that noise resulting from offshore wind development would 
cause marine mammal strandings, and there is no evidence linking recent 
large whale mortalities and currently ongoing offshore wind activities 
(e.g., HRG surveys or construction). The commenters offer no such 
evidence or other scientific information to substantiate their claim. 
This point has been well supported by other agencies, including the 
Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring 
2023). Additionally, a recent paper by Thorne and Wiley (2024) reviewed 
spatiotemporal patterns of strandings, mortalities, and serious 
injuries of humpback whales along the U.S. East Coast from 2016-2022. 
Humpback whales were chosen as a case study for this analysis as they 
are currently undergoing a UME and strand more often than other large 
whale species. Thorne and Wiley (2024) found vessel strikes to be a 
major driver in the increase of humpback whale strandings, mortalities, 
and serious injury along the east coast. The potential for vessel 
strike increased during the study period due to increased vessel 
traffic in new foraging areas, the increased presence of juvenile 
humpback whales, and humpback whale foraging in shallow areas that 
overlap with vessel traffic. Based upon the spatiotemporal analysis, no 
evidence was found that offshore wind development played a role in the 
increased number of strandings over time. Future studies should focus 
on gaining a greater understanding of spatial and seasonal habitat use 
patterns of large whales, spatiotemporal changes in prey abundance and 
distribution, and how habitat use and foraging behavior affect the risk 
of vessel strike. While several species of delphinids and beaked whales 
have also stranded off New Jersey since 2011 (per data provided from 
the National Marine Stranding Network), there is no evidence that the 
acoustic sources used during HRG surveys contributed to these events. 
NMFS will continue to gather data to help us determine the cause of 
death for these stranded whales.
    Recently, NMFS was made aware of a media article wherein a member 
of the public conducted a statistical analysis on the correlation 
between offshore wind vessel use and whale deaths along the U.S. east 
coast (Climate Change Dispatch, 2024). The parameters considered in the 
analysis were limited to offshore wind vessel movement and whale 
deaths. NMFS has long recognized that marine mammals strandings have 
increased over the years, including increases in strandings of three 
large whale species resulting in the declaration of Unusual Mortality 
Events for minke, humpback, and North

[[Page 75668]]

Atlantic right whales in 2018, 2017, and 2017 respectively. Offshore 
wind development has increased over the same time period, so the 
correlation was not surprising. However, the analysis presented in the 
article was not peer-reviewed, was limited, not fully described, does 
not appear to separate out vessel movement from survey activities, did 
not consider other known factors that are increasing ship strike risk 
in general (e.g., Thorne and Wiley, 2024) or other factors leading to 
increased strandings (e.g., entanglement, climate change), and did not 
demonstrate that offshore wind vessel traffic or HRG surveys are the 
cause of strandings. Overall, while NMFS considered this information, 
it did not provide new information that links whale strandings to 
offshore wind vessel movement or surveys.
    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 whale and 
North Atlantic right whale UMEs in the Description of Marine Mammals in 
the Area of Specified Activities section of this notice. For humpback 
whales, partial or full necropsy examinations were conducted on 
approximately half of the whales that were 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. For North Atlantic right 
whales, starting in 2017, evaluated mortalities were documented in both 
Canada and the United States, with the whales documented for this UME 
as being dead, injured, and/or sick to the extent that more than 20 
percent of the population has been affected. The preliminary cause of 
mortality, serious injury, and morbidity (sublethal injury and illness) 
in most of these whales is from entanglements or vessel strikes and 
human impacts continue to threaten the survival of this species. See 
NMFS' websites (https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast and https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-north-atlantic-right-whale-unusual-mortality-event) 
for more information on the ongoing humpback whale and North Atlantic 
right whale UMEs. More information about interactions between offshore 
wind energy projects and whales can be found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales.
    Comment 28: A commenter indicates that NMFS has not taken new 
information into account for the presence and behaviors of sperm whales 
in the proposed Project Area. The commenter further notes that due to 
high sperm whale presence in the Project Area, as described by Farmer 
et al. (2018) and Westell et al. (2024), NMFS should strengthen 
mitigation measures for sperm whales.
    Response: NMFS disagrees that new information to account for the 
presence and behaviors of sperms whales in the Project Area have not 
been taken into account. Although Westell et al. (2024) acoustically 
identified sperm whale presence in the lease area during June and July 
2020-2021, Vineyard Wind 1 PSO data collected during the 2023 
construction campaign during June through December 2023 did not 
document any sightings of sperm whales in the Lease Area (RPS, 2024). 
In addition, there is no designated critical habitat or biologically 
important areas (BIAs) for this species in the vicinity of the LIA. The 
commenter also references the Farmer et al. (2018) study of 
disturbances to sperm whales, however, that study discusses the Gulf of 
Mexico stock of sperm whales specifically in the Gulf of Mexico. NMFS 
has included a robust suite of mitigation measures specific to sperm 
whales in the IHA, including a 500 m visual pre-start clearance zone, 
500 m visual shutdown zone, a 500 m PAM clearance zone, and a 500 m PAM 
monitoring zone in addition to general mitigation measures regarding 
soft start, noise attenuation, and seasonal and daily pile driving 
restrictions. Due to limited documented occurrence during Vineyard Wind 
1 activities in the lease area, NMFS does not agree that it is 
appropriate or warranted to extend mitigation measures for sperm 
whales.
    Comment 29: One commenter claims that the NEPA process for the 
Vineyard Wind 1 IHA is segmented and that a cumulative EIS should be 
developed for the RI-MA WEA. The commenter further indicates that a 
cumulative EIS should include nine lease areas, including the proposed 
Vineyard Wind 1 Project Area within the WEA.
    Response: NMFS' proposed action to issue an IHA to Vineyard Wind 
constitutes a major Federal action under NEPA. In 2021, after 
independent review, with specific attention given to its evaluation of 
effects to marine mammals and their habitat, NMFS adopted BOEM's 
Vineyard Wind 1 Final Environmental Impact Study (FEIS) to satisfy 
NMFS' independent NEPA obligations related to its decision under the 
MMPA of whether or not to issue an IHA to the Vineyard Wind and signed 
a Record of Decision on May 10, 2021. The FEIS evaluated the direct and 
indirect impacts of the project as well as the cumulative impacts of 
all past, present and foreseeable future actions, including full 
offshore wind build-out of the OCS. Therefore, the cumulative impacts 
from constructing wind farms in all proposed lease areas, including 
those in southern New England, is included in the FEIS. BOEM's Vineyard 
Wind 1 FEIS was challenged and upheld by a court. For these reasons, 
NMFS disagrees that a separate EIS that considers the nine lease areas 
in the RI-MA WEA alone is necessary to comply with NEPA for issuance of 
the IHA.
    Comment 30: Commenters suggest that supplemental NEPA is necessary 
for the proposed action and the Vineyard Wind 1 EIS should be reopened 
to incorporate this analysis. One commenter recommends that the 
Vineyard Wind 1 Record of Decision (ROD) and project construction be 
suspended until a new FEIS is completed. Another commenter claims that 
the Vineyard Wind 1 ROD is in violation of NEPA as it was completed and 
approved before the reinitiated Biological Opinion in 2021 and also 
supported halting construction of the project. An additional commenter 
claims that supplemental NEPA would be necessary if any larger piles or 
a greater number (than 15) pile were to be installed and this NEPA 
should consider any changes to hammer type, hammer size, effects to the 
substrate, and effects on marine mammals.
    Response: NMFS disagrees with commenters that a supplemental NEPA 
document is necessary for this action or that the FEIS is deficient. 
The planned completion of pile installation, including reduced scope of 
work, inclusion of in situ SFV data into the analysis, additional 
mitigation, monitoring, and reporting measures, and updated marine 
mammal density data, have been reviewed by NMFS to determine if 
supplementation is

[[Page 75669]]

warranted. Vineyard Wind 1 has proposed to install the same size of the 
remaining 15 piles using the same hammer type. Supplementation of the 
Vineyard Wind 1 EIS is not required because this proposed action does 
not represent a substantial change to the Project and the proposed 
changes do not change the impact determinations. Therefore, the changes 
referenced here do not present significant new circumstances or 
information relevant to environmental concerns pertaining to the 
proposed action or its impacts (see 40 CFR 1502.9(d)(1)). NMFS has 
determined that the Vineyard Wind 1 FEIS is sufficient and a 
supplemental NEPA document is not necessary.
    As the Vineyard Wind 1 FEIS is sufficient for the proposed action 
and a new FEIS does not need to be prepared, it is not necessary to 
suspend the ROD or project construction. In addition, the original 
Biological Opinion was finalized on September 11, 2020, in advance of 
the Vineyard Wind 1 ROD, finalized on May 10, 2021.

Changes From the Proposed IHA to the Final IHA

    The text of several measures in the draft IHA was revised to 
improve the clarity and consistency of the measures. In addition, 
reporting requirements on marine mammals have been updated in 
accordance with Greater Atlantic Regional Fisheries Office (GARFO), 
Southeast Regional Office (SERO), and the Northeast Fisheries Science 
Center (NEFSC) most recent guidance. Several other measures were 
changes from the proposed IHA to the final IHA in consideration of 
public comments or other information. Changes are summarized here, with 
additional explanation provided later in the notice, as necessary:
     The requirement for NMFS approval for pile driving in 
December was removed as a mitigation requirement from the IHA. After 
the 30-day public comment period on the proposed IHA, Vineyard Wind 1 
notified NMFS that pile driving would likely commence in November and 
continue into December. Therefore, NMFS removed the requirement for 
Vineyard Wind 1 to obtain prior approval from NMFS to pile drive in 
December;
     Pilot whales and Risso's dolphins were moved from the 500 
m clearance and shutdown zone category to the 160 m clearance and 
shutdown zone category in the IHA. The distance to the Level A 
harassment zone for other mid-frequency cetaceans is 43 m, and a 160 m 
clearance and shutdown zone is sufficient to encompass this zone. In 
addition, the clearance and shutdown distance for other mid-frequency 
delphinids is 160 m. This change was also made to align with the 
Vineyard Wind 1 original request in the application;
     The timeframe for the use of vessel-based surveys to 
confirm the clearance zone is clear of North Atlantic right whales 
prior to pile driving has been extended from the original period of 
December 1-December 31, described in the proposed IHA notice to the 
period of November 1-December 31. This change was made to align with 
the Vineyard Wind 1 original request in the application and to provide 
increased mitigation during the month of November as well when North 
Atlantic right whale density begins to increase in the Project area;
     In response to a public comment, NMFS has added a measure 
to require Vineyard Wind 1 to cease pile driving if there is a live 
cetacean stranding within 50 km of pile driving activities and the NMFS 
Marine Mammal Stranding Network is attempting to herd or return animals 
to the water;
     The IHA measure describing the procedures for Vineyard 
Wind 1 to implement if any of the SFV measurements exceed the distance 
expected or modeled to any isopleth of concern was revised in the final 
IHA for clarity. The examples for a pile being installed with a single 
bubble curtain and near field sound attenuation device and the example 
for a double bubble curtain without a near field sound attenuation 
device were removed as Vineyard Wind 1 would be required to use both a 
double bubble curtain and near field sound attenuation device. In 
addition, the requirement for Vineyard Wind 1 to request concurrence 
from NMFS to proceed with pile driving after providing a written 
explanation of isopleth exceedance was removed. If any isopleth of 
concern is exceeded, Vineyard Wind 1 would be required to provide 
written explanation to NMFS Office of Protected Resources supporting 
their determination that adjustments to mitigation measures would be 
sufficient in reducing pile driving noise below the isopleth of concern 
and implement those measures;
     NMFS updated the SFV requirements in the IHA to align with 
the Biological Opinion Terms and Conditions;
     The educational requirement for PSOs and PAM operators to 
receive a bachelor's degree ``from an accredited college or 
university'' have been removed, although PSOs and PAM operators are 
still required to hold a bachelor's degree; and
     The requirement for full PAM detection data to be 
submitted with monthly reports has been updated due to a change in 
Northeast Fisheries Science Center reporting requirements. Vineyard 
Wind 1 must submit full PAM detection data within 90 days after 
foundation installation ceases and every 90 calendar days for transit 
lane PAM.
    In addition, the following measure was added to the IHA section 
5(a) to describe Vineyard Wind 1's obligation if SFV measurements show 
exceedance of expected Level A harassment or Level B harassment 
thresholds, including while implementing additional mitigation 
measures:
     If, after all practicable measures that could be taken to 
reduce noise levels have been successfully implemented and exhausted, 
Thorough SFV measurements continue to indicate that the distances to 
marine mammal Level A harassment thresholds are greater than those 
modeled assuming 6 dB attenuation and the Level B harassment thresholds 
based on SFV during the 2023 campaign, Vineyard Wind 1 must meet with 
NMFS within 3 three business days to discuss: the results of SFV 
monitoring, the severity of exceedance of distances to identified 
isopleths of concern, the species affected, modeling assumptions, and 
whether the SFV results demonstrate the magnitude and degree of impacts 
from the Project are greater than those considered in this final IHA.

Description of Marine Mammals in the Area of Specified Activities

    Thirty-eight marine mammal species, comprising 39 stocks, under 
NMFS' jurisdiction have geographic ranges overlapping the western North 
Atlantic OCS (Hayes et al., 2023). However, for reasons described 
below, Vineyard Wind 1 has requested, and NMFS has authorized, take of 
only 14 species (comprising 14 stocks) of marine mammals. Sections 3 
and 4 of the application summarize available information regarding 
status and trends, distribution and habitat preferences, and behavior 
and life history of the potentially affected species. NMFS fully 
considered all of this information, and we refer the reader to these 
descriptions, instead of reprinting the information. See ADDRESSES. 
Additional information regarding population trends and threats may be 
found in NMFS' Stock Assessment Reports (SARs; 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'

[[Page 75670]]

website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
authorized for this activity and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and 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 (as described in NMFS' SARs; 16 
U.S.C. 1362(20)). While no serious injury or mortality is anticipated 
or authorized, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species or stocks and other threats. Four of the marine 
mammal species for which take is authorized are listed as endangered 
under the ESA, including the North Atlantic right whale, fin whale, sei 
whale, and sperm whale.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprise that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. 2023 draft SARs and NMFS' U.S. 2022 SARs. For the majority 
of species potentially present in the specific geographic region, NMFS 
has designated only a single generic stock (e.g., ``western North 
Atlantic'') for management purposes. This includes the ``Canadian east 
coast'' stock of minke whales, which includes all minke whales found in 
U.S. waters and is also a generic stock for management purposes. For 
humpback and sei whales, NMFS defines stocks on the basis of feeding 
locations (i.e., Gulf of Maine and Nova Scotia, respectively). However, 
references to humpback whales and sei whales in this document refer to 
any individuals of the species that are found in the specific 
geographic region. All values presented in table 1 are the most recent 
available at the time of publication and are available online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                   Table 1--Marine Mammal Species That May Occur in the LIA and Be Taken by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
           Common name \a\                Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \b\          abundance survey) \c\               SI \d\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             340 (0; 337; 2021) \e\        0.7   \f\ 27.2
Family Balaenopteridae (rorquals):
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24, 5,573,            11       2.05
                                                                                                             2021).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02, 3098,            6.2        0.6
                                                                                                             2021).
    Minke whale.....................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31, 17,002,         170        9.4
                                       acutorostrata.           Coastal.                                     2021).
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, Y             1,396 (0, 1,380, 2016)         22      12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            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 Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3, 30,627,          306        5.7
                                                                                                             2021).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -, -, N             64,587 (0.24, 52,801,         507         28
                                                                Offshore.                                    2021) \g\.
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             93,100 (0.56, 59,897,       1,452        414
                                                                                                             2021).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             44,067 (0.19, 30,662,         307         18
                                                                                                             2021).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71, 54,443,         544         28
                                                                                                             2021).
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--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08, 57,637,       1,729        339
                                                                                                             2018).
    Gray seal \h\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,911 (0.20, 23,924,       1,512      4,570
                                                                                                             2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ 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)).
\b\ 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.
\c\ NMFS 2022 marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance.
\d\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike).
\e\ The draft 2023 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).
\f\ 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.
\g\ As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form.
\h\ 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.


[[Page 75671]]

    As indicated above, all 14 species (with 14 managed stocks) in 
table 1 temporally and spatially co-occur with the activity to the 
degree that take is expected to occur. The following species are not 
expected to occur in the LIA due to their known distributions, 
preferred habitats, and/or known temporal and spatial occurrences: the 
blue whale (Balaenoptera musculus), northern bottlenose whale 
(Hyperoodon ampullatus), false killer whale (Pseudorca crassidens), 
pygmy killer whale (Feresa attenuata), melon-headed whale 
(Peponocephala electra), dwarf and pygmy sperm whales (Kogia spp.), 
killer whale (Orcinus orca), Cuvier's beaked whale (Ziphius 
cavirostris), four species of Mesoplodont whale (Mesoplodon 
densitostris, M. europaeus, M. mirus, and M. bidens), Fraser's dolphin 
(Lagenodelphis hosei), Clymene dolphin (Stenella clymene), spinner 
dolphin (Stenella longirostris), rough-toothed dolphin (Steno 
bredanensis), Atlantic spotted dolphin (Stenella frontalis), 
pantropical spotted dolphin (Stenella attenuata), short-finned pilot 
whale (Globicephala macrorhynchus), striped dolphin (Stenella 
coeruleoalba), white-beaked dolphin (Lagenorhynchus albirostris), and 
hooded seal (Crysophora cristata). None of these species were observed 
during the 2023 construction season or during previous site assessment/
characterization surveys (Vineyard Wind 2018, 2019, 2023a-f). Due to 
the lack of sightings of these species in the MA WEA (Kenney and 
Vigness-Raposa, 2010; ESS Group Inc., 2016; Kraus et al., 2016; 
Vineyard Wind, 2018; 2019; O'Brien et al., 2020; 2021; 2022; 2023; EPI 
Group, 2021; Palka et al., 2017; 2021; RPS, 2022; Vineyard Wind, 2023a-
f; Hayes et al., 2023) as well as documented habitat preferences and 
distributions, we have determined that each of these species will not 
be considered further. Furthermore, the northern limit of the northern 
migratory coastal stock of the common bottlenose dolphin (Tursiops 
truncatus) does not extend as far north as the LIA. Thus, take is only 
authorized for the offshore stock which may occur within the LIA. 
Although harp seals (Pagophilus groenlandicus) are expected to occur 
within the WDA, no harp seals were observed by PSOs during the Vineyard 
Wind 1 site characterization surveys (2016, 2018-2021; ESS Group Inc., 
2016; Vineyard Wind 2018; 2019) nor during the 2023 construction 
campaign (Vineyard Wind, 2023a-f). Thus, Vineyard Wind 1 did not 
request, and NMFS is not authorizing, take for this species.
    A detailed description of the species likely to be affected by the 
Project, including brief introductions to the species and relevant 
stocks as well as available information regarding population trends and 
threats, and information regarding local occurrence, were provided in 
the proposed IHA notice (89 FR 31008, April 23, 2024). Other than UME 
updates, we are not aware of any changes in the status of the species 
and stocks listed in table 1; therefore, detailed descriptions are not 
provided here. Please refer to the proposed IHA notice for these 
descriptions (89 FR 31008, April 23, 2024). Please also refer to NMFS' 
website (https://www.fisheries.noaa.gov/find-species) for generalized 
species accounts.
    Since the publication of the proposed IHA, the following updates 
have occurred to the below species in regards to general information or 
their active UMEs.

North Atlantic Right Whale

    As described in the proposed IHA notice, 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 
IHA, the number of animals considered part of the UME has increased. As 
of September 5, 2024, there have been 40 confirmed mortalities (dead, 
stranded, or floaters), 1 pending mortalities, and 35 seriously injured 
free-swimming whales for a total of 76 whales. The UME also considers 
animals with sublethal injury or illness (called ``morbidity''; n=66) 
bringing the total number of whales in the UME to 142. 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 known cases. Since 
publication of the proposed IHA, the number of animals considered part 
of the UME has increased to 227 total mortalities (as of September 5, 
2024). More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.

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 September 5, 2024, a total of 174 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/2017-2024-minke-whale-unusual-mortality-event-along-atlantic-coast.

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. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019a) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). 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 2.

[[Page 75672]]



                  Table 2--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen         7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,      150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true          275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur 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 et al., 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    Exposure to underwater noise from the specified activities has the 
potential to result in Level A harassment or Level B harassment of 
marine mammals in the specific geographic region, but no serious injury 
or mortality. The proposed IHA Federal Register notice (89 FR 31008, 
April 23, 2024) included a discussion of the effects of anthropogenic 
noise on marine mammals and the potential effects of underwater noise 
from the Project's specified activities on marine mammals and their 
habitat. While some new literature regarding marine mammal distribution 
and habitat use has been published since publication of the proposed 
IHA (e.g., Bellman et al., 2023; Holdman et al., 2023, Meyer-Gutbrod et 
al., 2023; Roberts et al., 2024; Thorne and Wiley, 2024), there is no 
new information that NMFS is aware of that changes the analysis in the 
proposed IHA notice. We provide a summary of these papers below.
    Bellmann et al. (2023) collected 27 operational noise measurements 
across 24 offshore wind farms consisting of 16 different WTG types of 
powers ranging from 2.3 to 8 mega watts (MW). It should be noted that 
the results from Holme et al. (2023) are based on a subset of these 
data. Similar to Holme et al. (2023), Bellmann et al. (2023) note that 
no relationship between nominal WTG power and operational noise was 
observed, in contrast with the linear models used by Tougaard et al. 
(2020) and St[ouml]ber and Thomsen (2021). It is theorized that this is 
related to gearless and more modern WTGs measured as well as increased 
size and weight reducing transmission of vibrations. With regard to the 
extent of operational noise levels, Bellmann et al. (2023) concluded 
that tonal components of the operational noise are clearly observable 
at a range of 100 meters, but typically are not resolvable within the 
prevailing ambient noise at a range of 5 km. However, Bellmann et al. 
(2023) also comment that these measurements were taken within the first 
year of operation, and that previous experience indicates noise levels 
will change significantly over time, likely due to wear and tear in 
gearbox WTGs, but that it is not clear at this time if these changes 
will also be present in direct-drive systems.
    Holdman 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; Hayes et al., 2022). 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. 
This study emphasized the importance of early identification of 
important harbor porpoise habitat to mitigate impacts and monitor 
change in the event of overlap between these habitats and areas 
proposed for offshore wind development.
    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 U.S. calving ground

[[Page 75673]]

and early spring foraging in Cape Cod Bay, 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.
    In 2022, the Duke University Marine Geospatial Ecology Laboratory 
provided updated habitat-based marine mammal density models for the 
U.S. Atlantic (Roberts et al., 2016; Roberts et al., 2023). The take 
estimate analysis for the Vineyard Wind 1 IHA incorporates these 
density models into methodology for estimating take from foundation 
installation (89 FR 504, January 4, 2024). Recently, North Atlantic 
right whale density model results were evaluated using independently 
collected passive acoustic monitoring (PAM data) (Roberts et al., 
2024). Positive correlations between North Atlantic right whale 
densities and acoustic detection rates indicated concurrence between 
visual and acoustic observations of North Atlantic right whales. 
Results of this study also further quantify the North Atlantic right 
whale distribution shifts that occurred in 2010.
    Moreover, new data also supports our inclusion of certain 
mitigation measures in the proposed and this final IHA. For example, 
Crowe et al. (2023) discussed the use and importance of real-time data 
for detecting North Atlantic right whales. 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 IHA included 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 whales were detected at 
least 1 day every week throughout both years, with highest North 
Atlantic right whale presence from October to April. Within Southern 
New England (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 
hour of pre-construction monitoring there was only 4 percent likelihood 
of hearing a North Atlantic right whale, compared to a 74 percent 
likelihood at 18 hours. Therefore, monitoring for at least 24 h prior 
to activity will increase the likelihood of detecting an up-calling 
North Atlantic right whale.
    Overall, there is no new scientific information regarding the 
general anticipated effects of offshore wind construction on marine 
mammals and their habitat that was not discussed in the proposed IHA. 
The information and analysis regarding the potential effects on marine 
mammals and their habitat included in the proposed IHA Federal Register 
notice is referenced and used for this final IHA notice and is not 
repeated here; please refer to the proposed IHA Federal Register notice 
(89 FR 31008, April 23, 2024).
    Globally, there are more than 341,000 operating WTGs (Global Wind 
Energy Council). Turbine failures are known to occur but are considered 
rare events (Katsaprakakis et al., 2021, DOE, 2024a). For example, 
fewer than 40 incidents were identified in the modern fleet of more 
than 40,000 onshore turbines installed in the United States as of 2014 
(DOE, 2024b). In 2022, the total global capacity of offshore wind 
reached 59,009 MW from 292 operating projects and over 11,900 operating 
wind turbines in 2022 (DOE, 2023), and a review of the relevant 
literature and media reports indicate blade failure among this cohort 
of turbines continues to be rare, consistent with industry performance 
in onshore wind turbines. On July 13, 2024, however, a blade on one of 
the WTGs at Vineyard Wind 1 was damaged during the ``warm up'' phase of 
operations, causing a portion of the blade, primarily composed of 
fiberglass, to fall into the water. In cooperation with Vineyard Wind 
1, GE Vernova, the blade manufacturer, initiated debris recovery 
efforts and an investigation. Following this blade failure incident, 
the Bureau of Safety and Environmental Enforcement (BSEE), Department 
of Interior, issued a Suspension Order on July 17, 2024 (https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-statement-on-vineyard-wind) and an additional Order for 
clarification on July 26, 2024 (https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-issues-new-order-to-vineyard-wind), which suspends power production and any further wind 
turbine generator construction until the suspension is lifted. GE 
Vernova has preliminarily identified a defect in the manufacturing 
process, specifically insufficient bonding, of this particular blade 
that the quality assurance program should have identified. On August 9, 
2024, Vineyard Wind and GE Vernova released an action plan that 
outlines the steps necessary to remove the remainder of the damaged 
blade, continue debris cleanup response efforts, and resume turbine 
installation and operations of the project. The plan specifies that no 
blades will be installed or used in operation until each is inspected. 
In addition, GE has developed and will implement real-time monitoring 
technology to monitor blades during operations to avoid this type of 
incident from occurring in the future.
    As noted above, wind turbine failure is considered rare, and NMFS 
still considers the likelihood that blade failure would occur pursuant 
to Vineyard Wind 1's specified activity during the effective period of 
the IHA so low as to be discountable. Furthermore, GE Vernova's quality 
assurance program will complete thorough inspections on the remaining 
blades to be installed to ensure additional blade malfunction incidents 
do not occur. Vineyard Wind 1 did not request, NMFS does not 
anticipate, and NMFS has not authorized, take of marine mammals 
incidental to a turbine blade failure and, therefore the topic is not 
discussed further.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform NMFS' consideration of 
``small numbers'' and the negligible impact determinations (impacts on 
subsistence uses is not relevant here).
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as noise 
from pile driving has the potential to result in disruption of marine 
mammal behavioral patterns. Impacts such as masking and TTS can 
contribute to the disruption of behavioral patterns and are accounted 
for within those authorized takes. There is also some potential for 
high frequency species (harbor porpoise) and phocids (harbor

[[Page 75674]]

seal and gray seal) to experience a limited amount of auditory injury 
(PTS; Level A harassment) primarily because predicted auditory injury 
zones are large enough and these species are cryptic enough that the 
potential for PTS cannot be fully discounted or mitigated. For 
mysticetes, the Level A harassment ER95percent ranges are 
also large (0.043 km to 3.191 km); however, the extensive marine mammal 
mitigation and monitoring planned by Vineyard Wind 1 and required by 
NMFS, as well as natural avoidance behaviors is expected to reduce the 
potential for PTS to discountable levels. Nevertheless, Vineyard Wind 1 
has requested, and NMFS has authorized a small amount of Level A 
harassment incidental to installing piles (table 11). Auditory injury 
is unlikely to occur for mid-frequency species as thresholds are higher 
and PTS zones are very close to the pile, such that PTS is unlikely to 
occur. While NMFS has authorized Level A harassment and Level B 
harassment, the planned mitigation and monitoring measures are expected 
to avoid or minimize overall the taking to the extent practicable (see 
Mitigation and Monitoring and Reporting).
    As described previously, no serious injury or mortality is 
anticipated or authorized incidental to the specified activity. Even 
without mitigation, pile driving activities are unlikely to directly 
cause marine mammal mortality or serious injury. There is no documented 
case wherein pile driving resulted in marine mammal mortality or 
stranding and the scientific literature demonstrates that the most 
likely behavioral response to pile driving (or similar stimulus source) 
is avoidance and temporary cessation of behaviors such as foraging or 
socialization (see Avoidance and Displacement in Potential Effects of 
Specified Activities on Marine Mammals and Their Habitat section of the 
proposed IHA Federal Register notice (89 FR 31008, April 23, 2024). 
While in general there is a low probability that mortality or serious 
injury of marine mammals could occur from vessel strikes, the 
mitigation and monitoring measures contained within this IHA are 
expected to avoid vessel strikes (see Mitigation section). No other 
activities have the potential to result in mortality or serious injury.
    For acoustic impacts, we estimate take by considering: (1) acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and (4) the 
number of days of activities. We note that while these factors can 
contribute to a basic calculation to provide an initial prediction of 
potential takes, additional information that can qualitatively inform 
take estimates is also sometimes available (e.g., previous monitoring 
results or average group size). Below, we describe the factors 
considered here in more detail and present the authorized take 
estimates.
    As described below, there are multiple methods available to 
estimate the density or number of a given species in the area 
appropriate to inform the take estimate. For each species and activity, 
the largest value resulting from the three take estimation methods 
described below (i.e., density-based, PSO-based, or mean group size) 
was carried forward as the amount of take authorized by Level B 
harassment. The amount of take authorized by Level A harassment 
reflects the density-based exposure estimates and, for some species and 
activities, consideration of other data such as mean group size.
    Below, we describe NMFS' acoustic thresholds, acoustic and exposure 
modeling methodologies, marine mammal density calculation methodology, 
occurrence information, and the modeling and methodologies applied to 
estimate take for the Project's planned construction activities. NMFS 
considered all information and analysis presented by Vineyard Wind, as 
well as all other applicable information and, based on the best 
available science, concurs that the estimates of the types and amounts 
of take for each species and stock are reasonable, and has authorized 
the amount requested. NMFS notes the take estimates described herein 
for foundation installation can be considered conservative because the 
estimates do not reflect the implementation of clearance and shutdown 
zones for any marine mammal species or stock.

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 (Level B harassment) or to incur 
PTS of some degree (Level A harassment). A summary of all NMFS' 
thresholds can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source, ambient noise, and the receiving animal's hearing, motivation, 
experience, demography, behavior at time of exposure, life stage, 
depth) and can be difficult to predict (e.g., Southall et al., 2007, 
2021, Ellison et al., 2012). Based on what the available science 
indicates and the practical need to use a threshold based on a metric 
that is both predictable and measurable for most activities, NMFS 
typically uses a generalized acoustic threshold based on received level 
to estimate the onset of behavioral harassment.
    NMFS generally predicts that marine mammals are likely to be taken 
in a manner considered to be Level B harassment when exposed to 
underwater anthropogenic noise above RMS SPL of 120 dB (referenced to 1 
micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile 
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources. Generally speaking, Level B harassment take 
estimates based on these thresholds are expected to include any likely 
takes by TTS as, in most cases the likelihood of TTS occurs at closer 
distances from the source. TTS of a sufficient degree can manifest as 
behavioral harassment, as reduced hearing sensitivity and the potential 
reduced opportunities to detect important signals (conspecific 
communication, predators, prey) may result in changes in behavior 
patterns that would not otherwise occur.
    The Project's planned construction activities include the use of 
impulsive sources (e.g., impact pile driving), and therefore the 160-dB 
re 1 [mu]Pa (rms) threshold is applicable to our analysis.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0, 
Technical Guidance) (NMFS, 2018) identifies dual criteria to assess 
auditory injury (Level A harassment) to five different marine mammal 
groups (based on hearing sensitivity) as a result of exposure to noise 
from two different types of sources (impulsive or non-impulsive). As 
dual metrics, NMFS considers onset of PTS (Level A harassment) to have 
occurred when either one of the two metrics is exceeded (i.e., metric 
resulting in the largest isopleth). As described above, the Vineyard 
Wind 1 planned activities include the use of impulsive sources.

[[Page 75675]]

NMFS' thresholds identifying the onset of PTS are provided in table 3. 
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 3--Permanent Threshold Shift (PTS) Onset Thresholds
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Lp,0-pk,flat: 219 dB;       LE,p,LF,24h: 199 dB.
                                          LE,p,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Lp,0-pk,flat: 230 dB;       LE,p MF,24h: 198 dB.
                                          LE,p,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Lp,0-pk,flat: 202 dB;       LE,p,HF,24h: 173 dB.
                                          LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Lp,0-pk,flat: 218 dB;       LE,p,PW,24h: 201 dB.
                                          LE,p,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Lp,0-pk,flat: 232 dB;       LE,p,OW,24h: 219 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.

    Below, we describe the assumptions and methodologies used to 
estimate take, in consideration of acoustic thresholds and appropriate 
marine mammals density and occurrence information, for WTG monopile 
installation. Resulting distances to thresholds, densities and 
occurrence (i.e., PSO sightings, group size) data used, exposure 
estimates (as relevant to the analysis), and activity-specific take 
estimates can be found below.

Acoustic and Exposure Modeling

    During the 2023 Vineyard Wind 1 pile installation activities, 
Vineyard Wind 1 conducted a SFV study to compare with model results of 
the 2018 modeling (K[uuml]sel et al., 2024). The SFV study included 
acoustic monitoring of the impact installation of 12 monopile 
foundations from June 6 through September 7, 2023. Five of the 12 
acoustically monitored monopiles were determined to be representative 
of the noise attenuation system (NAS) configuration and maintenance 
schedule that would be proposed for the remaining 15 monopiles to be 
installed in 2024. These five representative monopiles (piles 7, 8, 10, 
11, and 12 in the Vineyard Wind 1 SFV Monitoring Report) were monitored 
using a DBBC and Hydrosound Damper System (HSD), which Vineyard Wind 1 
will be required to use for use as the noise attenuation system setup 
for the remaining 15 monopiles. Vineyard Wind 1 also followed an 
enhanced bubble curtain maintenance schedule for these 5 monopiles; 
this maintenance schedule will be used for the remaining 15 monopiles 
to be installed under this IHA (see the Vineyard Wind 1 Enhanced Big 
Bubble Curtain (BBC) Technical Memo). Peak (pk), SEL, and RMS SPL 
received distances for each acoustically monitored pile are reported in 
the VW1 SFV Final Report Appendix A (K[uuml]sel et al., 2024) For 
additional details on how acoustic ranges were derived from SFV 
measurements, see the VW1 SFV Final Report sections 2.3 and 3.3 
(K[uuml]sel et al., 2024). JASCO modeled a maximum range to the Level A 
harassment threshold of 3.191 km (1.99 mi) with 6 dB attenuation (for 
low-frequency cetaceans) (K[uuml]sel et al., 2024).
    In addition to the 15 piles being installed under the same noise 
attenuation scenario as the 5 aforementioned representative piles, they 
are also anticipated to be installed under similar pile driving 
specifications and in a similar acoustic environment. Table 4 describes 
the key piling assumptions and planned impact pile driving schedule for 
2024. These assumptions and schedule are based upon the 2023 piling and 
hammer energy schedule for installing monopiles. Vineyard Wind 1 
expects installation of the 15 remaining piles will necessitate similar 
operations. Further, as described in detail in section 6.1 of the 
Vineyard Wind 1 application, the water depth and bottom type are 
similar throughout the Lease Area and therefore sound propagation in 
the LIA is not expected to differ from where the SFV data were 
collected in 2023.

              Table 4--Key Piling Assumptions and Hammer Energy Schedule for Monopile Installation
----------------------------------------------------------------------------------------------------------------
                                                    Max hammer                      Max piling time
          Pile type            Project component   energy rating     Number of       duration per       Number
                                                       (kJ)        hammer strikes     pile (min)      piles/day
----------------------------------------------------------------------------------------------------------------
9.6-m monopile..............  WTG...............           4,000  2,884-4,329                   117            1
                                                                   (average
                                                                   3,463) \a\.
----------------------------------------------------------------------------------------------------------------
\a\ The number of hammer strikes represents the range of strikes needed to install the 12 monopiles for which
  SFV was conducted in 2023.

    Vineyard Wind 1 compared the acoustic ranges to the Level A 
harassment and Level B harassment thresholds derived from the 2018 
acoustic modeling (Py[cacute] et al., 2018) to the maximum ranges with 
absorption for the five representative monopiles acoustically monitored 
in 2023. They applied the greater results to the

[[Page 75676]]

analysis in their application and NMFS has included that approach in 
this IHA. The maximum measured range to PTS thresholds of the five 
representative monopiles was less than the maximum 2018 modeled ranges 
for all hearing groups assuming 6 dB attenuation (table 5) (with the 
exception of high-frequency cetaceans, although Vineyard Wind 1 
attributes this extended range to non-piling noise (Vineyard Wind 1, 
2023)). Therefore, Vineyard Wind 1 based the expected distance to the 
Level A harassment threshold and associated estimated take analysis on 
the 2018 modeled data.

         Table 5--Modeled and Measured Ranges to SELcum PTS Thresholds for Marine Mammal Hearing Groups
----------------------------------------------------------------------------------------------------------------
                                                                Modeled range to SELcum   Measured maximum range
                  Marine mammal hearing group                    PTS threshold (km) \a\  to SELcum PTS threshold
                                                                                                 (km) \b\
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans.......................................                    3.191                    2.370
Mid-frequency cetaceans.......................................                    0.043                    0.010
High-frequency cetaceans......................................                    0.071                    0.200
Phocid pinnipeds..............................................                    0.153                    0.100
----------------------------------------------------------------------------------------------------------------
\a\ Based upon modeling conducted for the 2023 IHA (Py[cacute] et al., 2018).
\b\ Based upon the five representative monopiles from the Vineyard Wind 1 2023 construction campaign (K[uuml]sel
  et al., 2024).

    The maximum range with absorption to the Level B harassment 
threshold for acoustically monitored piles was 5.72 km (3.6 mi) (pile 
13, AU-38; K[uuml]sel et al., 2024), which was greater than the 2018 
modeled distance to the Level B harassment threshold of 4.1 km (2.5 mi) 
(Py[cacute] et al. 2018). Therefore, Vineyard Wind 1 based the expected 
distance to the Level B harassment threshold for this IHA and 
associated estimated take analysis on the 5.72 km acoustically 
monitored distance.
    In 2018, Vineyard Wind 1 conducted animat modeling to estimate 
take, by Level A harassment (PTS), incidental to the project. In order 
to best evaluate the SELcum harassment thresholds for PTS, 
it is necessary to consider animal movement, as the results are based 
on how sound moves through the environment between the source and the 
receiver. Applying animal movement and behavior within the modeled 
noise fields provides the exposure range, which allows for a more 
realistic indication of the distances at which PTS acoustic thresholds 
are reached that considers the accumulation of sound over different 
durations (note that in all cases the distance to the peak threshold is 
less than the SEL-based threshold). As described above, Vineyard Wind 1 
based the Level A harassment estimated take analysis on the modeled 
Level A harassment acoustic ranges and therefore appropriately used the 
results of the JASCO's Animal Simulation Model Including Noise Exposure 
(JASMINE) animal movement modeling conducted for the 2023 IHA (86 FR 
33810, June 25, 2021). Sound exposure models like JASMINE use simulated 
animals (also known as ``animats'') to forecast behaviors of animals in 
new situations and locations based upon previously documented behaviors 
of those animals. The predicted 3D sound fields (i.e., the output of 
the acoustic modeling process described earlier) are sampled by animats 
using movement rules derived from animal observations. The output of 
the simulation is the exposure history for each animat within the 
simulation. The precise locations of animats and their pathways are not 
known prior to a project; therefore, a repeated random sampling 
technique (i.e., Monte Carlo) is used to estimate exposure probability 
with many animats and randomized starting positions. The combined 
exposure history of all animats gives a probability density function of 
exposure during the Project.
    Since the time that the JASMINE animal movement modeling was 
conducted for the 2023 IHA (86 FR 33810, June 25, 2021), no new 
behavior data is available that would have changed how animats move in 
time and space in that model and, therefore, NMFS has determined that 
the JASMINE outputs from the 2018 modeling effort are reasonable for 
application here. However, the post processing calculations used more 
recent density data (table 6). The mean number of modeled animats 
exposed per day with installation of one 9.6-m monopile were scaled by 
the maximum monthly density for the LIA (Roberts et al., 2023) for each 
species (table 6) to estimate the real-world number of animats of each 
species that could be exposed per day in the LIA. This real-world 
number of animals was multiplied by the expected number of days of pile 
installation (15 days) to derive a total take estimate by Level A 
harassment for each species. The number of potential exposures by Level 
A harassment was estimated for each species using the following 
equation:

Density-based exposure estimate Level A harassment = number 
of animats exposed above the Level A harassment threshold x ((mean 
maximum monthly density (animals/km\2\)/modeled 2018 density (animats/
km\2\)) x number of days (15).

    To estimate the amount of take by Level B harassment incidental to 
installing the remaining 15 piles, Vineyard Wind 1 applied a static 
method (i.e., did not conduct animal movement modeling). Vineyard Wind 
1 calculated the Level B harassment ensonified area using the following 
equation:

A = x r\2\,

where A is equal to the ensonified area and r is equal to the radial 
distance to the Level B harassment threshold from the pile driving 
source (rLevel B harassment = 5.72 km).
    The ensonified area (102.7 km\2\) was multiplied by the mean 
maximum monthly density estimate (table 8) and expected number of days 
of pile driving (15 days) to determine a density-based take estimate 
for each species. The number of potential exposures by Level B 
harassment was estimated for each species using the following equation:

Density-based exposure estimate Level B harassment = 
ensonified area (km\2\) x maximum mean monthly density estimate 
(animals/km\2\) x number of days (15).

Density and Occurrence and Take Estimation

    In this section we provide information about marine mammal density, 
presence, and group dynamics that informed the take calculations for 
the planned activities. Vineyard Wind applied the 2022 Duke University 
Marine Geospatial Ecology Laboratory Habitat-based Marine Mammal 
Density Models for the U.S. Atlantic (Duke

[[Page 75677]]

Model-Roberts et al., 2016; Roberts et al., 2023) to estimate take from 
foundation installation. The models estimate absolute density 
(individuals/km\2\) by statistically correlating sightings reported on 
shipboard and aerial surveys with oceanographic conditions. For most 
marine mammal species, densities are provided on a monthly basis. Where 
monthly densities are not available (e.g., pilot whales), annual 
densities are provided. Moreover, some species are represented as 
guilds (e.g., seals (representing Phocidae spp., primarily harbor and 
gray seals and pilot whales (representing short-finned and long-finned 
pilot whales))).
    The Duke habitat-based density models delineate species' density 
into 5 * 5 km (3.1 * 3.1 mi) grid cells. Vineyard Wind 1 calculated 
mean monthly densities by using a 10-km buffered polygon around the 
remaining WTG foundations to be installed and overlaying this buffered 
polygon on the density maps. The 10-km buffer defines the area around 
the LIA used to calculate mean species density. Mean monthly density 
for each species was determined by calculating the unweighted mean of 
all 5x5 km grid cells (partially or fully) within the buffered polygon. 
The unweighted mean refers to using the entire 5 km x 5 km (3.1 mi x 
3.1 mi) grid cell for each cell used in the analysis, and was not 
weighted by the proportion of the cell overlapping with the density 
perimeter if the entire grid cell was not entirely within the buffer 
zone polygon. Vineyard Wind 1 calculated densities for each month, 
except for species for which annual density data only was available 
(e.g., long-finned pilot whale). Vineyard Wind 1 used maximum monthly 
density from June to December for density-based calculations.
    The density models (Roberts et al., 2023) provided density for 
pilot whales and seals as guilds. Based upon habitat and ranging 
patterns (Hayes et al., 2023), all pilot whales occurring in the LIA 
are expected to be long-finned pilot whales. Therefore, all pilot whale 
density estimates are assumed to represent long-finned pilot whales. 
Seal guild density was divided into species-specific densities based 
upon the proportions of each species observed by PSOs during 2016 and 
2018-2021 site characterizations surveys within SNE (ESS Group, 2016; 
Vineyard Wind 2018, 2019, 2023a-f). Of the 181 seals identified to 
species and sighted within the WDA, 162 were gray seals and 19 were 
harbor seals. The equation below shows how the proportion of each seal 
species sighted was calculated to compute density for seals.

Pseal species = Nseal species/
Numbertotal seals identified

where P represents density and N represents number of seals.
    These calculations resulted in proportions of 0.895 for gray seals 
and 0.105 for harbor seals. The proportion for each species was then 
multiplied by the maximum monthly density for the seal guild (table 6) 
to determine the species-specific densities used in take calculations.
    The density models (Roberts et al., 2023) also do not distinguish 
between bottlenose dolphin stocks and only provide densities for 
bottlenose dolphins as a species. However, as described above, based 
upon ranging patterns (Hayes et al., 2023), only the Western North 
Atlantic offshore stock of bottlenose dolphins is expected to occur in 
the LIA. Therefore, it is expected that the bottlenose dolphin density 
estimate is entirely representative of this stock. Maximum mean monthly 
density estimates and month of the maximum estimate are provided in 
table 6 below.

  Table 6--Maximum Mean Monthly Marine Mammal Density Estimates (Animals per km\2\) Considering a 10-km Buffer
                                      Around the Limited Installation Area
----------------------------------------------------------------------------------------------------------------
                  Species                     Maximum mean density              Maximum density month
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..............                   0.0043  December.
Fin whale *...............................                   0.0036  July.
Humpback whale............................                   0.0022  June.
Minke whale...............................                   0.0180  June.
Sei whale *...............................                   0.0008  November.
Sperm whale *.............................                   0.0008  September.
Atlantic white-sided dolphin..............                   0.0204  June.
Bottlenose dolphin \a\....................                    0.008  August.
Common dolphin............................                   0.1467  September.
Long-finned pilot whale \b\...............                    0.001  N/A.
Risso's dolphin...........................                   0.0013  December.
Harbor porpoise...........................                   0.0713  December.
Seals (gray and harbor) \c\...............                   0.1745  May.
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Density estimate represents the Northwestern Atlantic offshore stock of bottlenose dolphins.
\b\ Only annual densities were available for the pilot whale guild.
\c\ Gray and harbor seals represented as a guild.

    For some species, PSO survey and construction data for SNE (ESS 
Group, 2016; Vineyard Wind, 2018, 2019, 2023a-f) and mean group size 
data compiled from the AMAPPS (Palka et al., 2017; 2021) indicate that 
the density-based exposure estimates may be insufficient to account for 
the number of individuals of a species that may be encountered during 
the planned activities. Hence, local PSO and AMAPPS data were 
considered to ensure the potential for take is adequately assessed.
    In cases where the density-based Level B harassment exposure 
estimate for a species was less than the mean group size-based exposure 
estimate, the take request was increased to the mean group size (in 
some cases multiple groups were assumed) and rounded to the nearest 
integer (table 7). For all cetaceans, with the exception of North 
Atlantic right whales, Vineyard Wind 1 used the mean of the spring, 
summer, and fall AMAPPS group sizes for each species for the Rhode 
Island/Massachusetts Wind Energy Area (RI/MA WEA) as shown in tables 2-
2, 2-3, and 2-4 in Palka et al. (2021) appendix III. These seasons were 
selected as they would represent the time period in which pile driving 
activities would take place. Mean group sizes for cetacean species 
derived from RI/WEA AMAPPS data is shown below in table 7.

[[Page 75678]]

However, North Atlantic right whale seasonal group sizes for the RI/MA 
WEA were not available through the AMAPPS dataset (Palka et al., 2021). 
Vineyard Wind 1 calculated mean group size for North Atlantic right 
whales using data from the northeast (NE) shipboard surveys as provided 
in table 6-5 of Palka et al. (2021). Vineyard Wind 1 calculated mean 
group size by dividing the number of individual right whales sighted 
(four) by the number of right whale groups (two) (Palka et al., 2021). 
The NE shipboard surveys were conducted during summer (June 1 through 
August 31) and fall (September 1 through November 30) seasons (Palka et 
al., 2021).
    For seals, mean group size data was also not available for the RI/
MA WEA through AMAPPS (Palka et al., 2021). Vineyard Wind 1 used 2010-
2013 AMAPPS NE shipboard and aerial survey at-sea seal sightings for 
gray and harbor seals, as well as unidentified seal sightings from 
spring, summer, and fall to calculate mean group size for gray and 
harbor seals (table 19-1, Palka et al., 2017). To calculate mean group 
size for seals, Vineyard Wind 1 divided the total number of animals 
sighted by the total number of sightings. As the majority of the 
sightings were not identified to species, Vineyard Wind 1 calculated a 
single group size for all seal species (table 7).
    Additional detail regarding the density and occurrence as well as 
the assumptions and methodology used to estimate take is included below 
and in section 6.2 of the incidental take authorization (ITA) 
application. Mean group sizes used in take estimates, where applicable, 
for all activities are provided in table 7.

                   Table 7--Mean Marine Mammal Group Sizes Used in Take Estimate Calculations
----------------------------------------------------------------------------------------------------------------
                 Species                   Mean group size                          Source
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *............                  2  Table 6-5 of Palka et al. 2021.
Fin whale *.............................                1.2  Palka et al. 2021.
Humpback whale..........................                1.2  Palka et al. 2021.
Minke whale.............................                1.4  Palka et al. 2021.
Sei whale *.............................                  1  Palka et al. 2021.
Sperm whale *...........................                  2  Palka et al. 2021.
Atlantic white-sided dolphin............               21.7  Palka et al. 2021.
Bottlenose dolphin......................               11.7  Palka et al. 2021.
Common dolphin..........................               30.8  Palka et al. 2021.
Long-finned pilot whale.................               12.3  Palka et al. 2021.
Risso's dolphin.........................                1.8  Palka et al. 2021.
Harbor porpoise.........................                2.9  Palka et al. 2021.
Seals (gray and harbor).................                1.4  Table 19-1 of Palka et al. 2017.
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.

    Vineyard Wind 1 also looked at PSO survey data (June through 
October 2023) in the LIA collected during Vineyard Wind 1 construction 
activities and calculated a daily sighting rate for species to compare 
with density-based take estimates and average group size estimates from 
AMAPPS (table 7). The number of animals of each species sighted from 
all survey vessels with active PSOs was divided by the sum of all PSO 
monitoring days (77 days) to calculate the mean number of animals of 
each species sighted (see table 11 in the ITA application). However, 
for each species, the PSO data-based exposure estimate was less than 
the density-based exposure estimate (see table 14 in the ITA 
application) and, therefore, density-based exposure estimates were not 
adjusted according to PSO data-based exposure estimates.
    Here we present the amount of take requested by Vineyard Wind 1 and 
authorized by NMFS. To estimate take, Vineyard Wind 1 used the pile 
installation construction schedule shown in table 4, assuming 15 total 
days of monopile installation. NMFS has reviewed these methods to 
estimate take and agrees with this approach. The authorized take 
numbers in table 9 appropriately consider SFV measurements collected in 
2023 and represent the maximum amount of take that is reasonably 
expected to occur.

             Table 8--Modeled Level A Harassment and Level B Harassment Acoustic Exposure Estimates
----------------------------------------------------------------------------------------------------------------
                                                                         Density-based exposure estimate
                            Species                            -------------------------------------------------
                                                                   Level A harassment       Level B harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale * \a\..............................                    0.503                      6.6
Fin whale *...................................................                    0.598                      5.5
Humpback whale................................................                     1.11                      3.4
Minke whale...................................................                    0.372                     27.7
Sei whale *...................................................                    0.144                      1.2
Sperm whale *.................................................                        0                      1.2
Atlantic white-sided dolphin..................................                        0                     31.4
Bottlenose dolphin............................................                        0                     12.3
Common dolphin................................................                        0                    226.0
Long-finned pilot whale.......................................                        0                      1.5
Risso's dolphin...............................................                        0                     2.00
Harbor porpoise...............................................                    2.758                    109.8
Gray Seal.....................................................                        0                    240.8
Harbor seal...................................................                    0.028                     28.2
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Although modeling shows a very low but non-zero exposure estimate for take by Level A harassment, mitigation
  measures will be applied to ensure there is no take by Level A harassment of this species.


[[Page 75679]]


                    Table 9--Authorized Takes (by Level A Harassment and Level B Harassment)
----------------------------------------------------------------------------------------------------------------
                                               Authorized take   Authorized take       Total        Percent of
           Species              NMFS stock       by Level A        by Level B       authorized         stock
                                 abundance       harassment        harassment          take          abundance
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *             338                 0                 7               7            2.07
 \a\........................
Fin whale *.................           6,802                 1                 6               7            0.10
Humpback whale..............           1,396                 2                 4               6            0.43
Minke whale.................          21,968                 1                28              29            0.13
Sei whale *.................           6,292                 1                 2               3            0.05
Sperm whale *...............           4,349                 0                 2               2            0.05
Atlantic white-sided dolphin          93,233                 0                32              32            0.03
Bottlenose dolphin..........          62,851                 0                13              13            0.02
Common dolphin b c..........         172,974                 0               462             462            0.27
Long-finned pilot whale \b\.          39,215                 0                13              13            0.03
Risso's dolphin.............          35,215                 0                 2               2           0.001
Harbor porpoise.............          95,543                 3               110             113            0.19
Gray Seal...................          27,300                 0               241             241            0.88
Harbor seal.................          61,336                 1                29              30            0.05
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Although modeling shows a very low but non-zero exposure estimate for take by Level A harassment, mitigation
  measures will be applied to ensure there is no take by Level A harassment of this species.
\b\ Authorized take by Level B harassment adjusted according to mean group size.
\c\ Authorized take by Level B harassment is based upon the assumption that one group of common dolphins (30.8
  dolphins; see table 7) would be encountered per each of the 15 days of pile driving.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
effect the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.
    For a fuller discussion of the least practicable adverse impact 
standard, see 89 FR 31488, 31517 (April 24, 2024; NMFS' final rule for 
Taking and Importing Marine Mammals Incidental to Geophysical Surveys 
in the Gulf of Mexico.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous incidental take 
authorizations issued in association with in-water construction 
activities (e.g., soft-start, establishing shutdown zones). Additional 
measures have also been incorporated to account for the fact that the 
planned construction activities would occur offshore. In addition, 
several measures in this IHA (i.e., seasonal restrictions, vessel 
strike avoidance, and clearance and shutdown zones) are more rigorous 
than measures previously incorporated into the 2023 IHA.
    Generally speaking, the mitigation measures considered and required 
here fall into three categories: temporal (seasonal and daily) work 
restrictions, real-time measures (shutdown, clearance, and vessel 
strike avoidance), and noise attenuation/reduction measures. Seasonal 
work restrictions are designed to avoid or minimize operations when 
marine mammals are concentrated or engaged in behaviors that make them 
more susceptible or make impacts more likely, in order to reduce both 
the number and severity of potential takes, and are effective in 
reducing both chronic (longer-term) and acute effects. Real-time 
measures, such as implementation of shutdown and clearance zones, as 
well as vessel strike avoidance measures, are intended to reduce the 
probability or severity of harassment by taking steps in real time once 
a higher-risk scenario is identified (e.g., once animals are detected 
within an impact zone). Noise attenuation measures, such as bubble 
curtains, are intended to reduce the noise at the source, which reduces 
both acute impacts as well as the contribution to aggregate and 
cumulative noise that may result in longer-term chronic impacts. Below, 
we also describe the required training, coordination, and vessel strike 
avoidance measures that apply to foundation installation and vessel 
use.

Training and Coordination

    NMFS requires all Vineyard Wind's 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 Vineyard Wind 1 
compliance with the IHA. 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,

[[Page 75680]]

relevant crew) join the project before work commences. During this 
training, Vineyard Wind 1 is required to instruct all project personnel 
regarding the authority of the marine mammal monitoring team(s). For 
example, pile driving personnel are required to immediately comply with 
any call for a delay or shut down by the Lead PSO. Any disagreement 
between the Lead PSO and the project personnel must only be discussed 
after delay or shutdown has occurred. In particular, all captains and 
vessel crew must be trained in marine mammal detection and vessel 
strike avoidance measures to ensure marine mammals are not struck by 
any project or project-related vessel.
    Prior to the start of in-water construction activities, Vineyard 
Wind 1 will conduct training for construction and vessel personnel and 
the marine mammal monitoring team (PSO and PAM operators) 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). 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. Vineyard Wind 1 will provide confirmation of 
all required training documented on a training course log sheet and 
reported to NMFS Office of Protected Resources prior to initiating 
project activities.

North Atlantic Right Whale Awareness Monitoring

    Vineyard Wind must use available sources of information on North 
Atlantic right whale presence, including daily monitoring of the Right 
Whale Sightings Advisory System, U.S. Coast Guard very high-frequency 
(VHF) Channel 16, WhaleAlert, and the PAM system throughout each day to 
receive notifications of any sightings, and information associated with 
any regulatory management actions (e.g., establishment of zones 
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 Vineyard Wind 1 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 IHA 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, it is one of 
the most common ways that marine mammals are seriously injured or 
killed by human activities. Therefore, the IHA contains enhanced 
mitigation and monitoring measures to avoid vessel strikes, to the 
extent practicable. While many of these measures are proactive, 
intending to avoid the heavy use of vessels during times when marine 
mammals of particular concern may be in the area, several are reactive 
and occur when a project personnel sights a marine mammal. Vineyard 
Wind 1 is 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, Vineyard Wind 1 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).
    For all project-related vessels, regardless of size, the vessel 
operator is required to immediately reduce speeds to 10 kn (11.5 mph) 
or less if any large whale, mother/calf pair, or large assemblage of 
non-delphinid cetaceans are observed within 500 m of the vessel. 
Additionally, all project vessels, regardless of size, must maintain a 
500-m minimum separation zone from North Atlantic right whales, and a 
100-m minimum separation zone from sperm whales and non-North Atlantic 
right whale baleen species. Vessels are also required to keep a minimum 
separation distance of 50 m from all delphinid cetaceans and pinnipeds, 
with an exception made for those species that approach the vessel 
(i.e., bow-riding dolphins) (table 10). All reasonable steps must be 
taken to not violate minimum separation distances. If any of these 
species are sighted within their respective minimum separation zone, 
the underway vessel must shift its engine to neutral (if it is safe to 
do so) and turn away from the animal(s). The engines must not be 
engaged until the animal(s) have been observed to be outside of the 
vessel's path and beyond 100 m (for sperm whales and non-North Atlantic 
right whale large whales) or 50 m (for delphinids and pinnipeds).
    If any North Atlantic right whales are sighted at any distance by 
any project personnel or acoustically detected, project vessels must 
reduce speeds to 10 kn (11.5 mph) and turn away from the animal. 
Additionally, if any large whale (other than a North Atlantic right 
whale) is sighted within 500 m of an underway vessel by project 
personnel, the vessel is required to immediately reduce speeds to 10 kn 
(11.5 mph) or less and turn away from the animal.
    All of the Project-related vessels are required to comply with the 
measures within this IHA for operating vessels around North Atlantic 
right whales and other marine mammals, as well as any existing NMFS 
vessel speed restrictions in effect for North Atlantic right whales 
(see 50 CFR 224.105). When NMFS vessel speed restrictions are not in 
effect and a vessel is traveling at greater than 10 kn (11.5 mph), in 
addition to the required dedicated visual observer, Vineyard Wind 1 is 
required to monitor the transit corridor, defined as from a port to the 
lease area or return, 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 a properly installed, 
operational AIS and Vineyard Wind 1 must report all MMSI numbers to 
NMFS Office of Protected Resources prior to initiating in-water 
activities. Vineyard Wind 1 must submit a Marine Mammal Vessel Strike 
Avoidance Plan that must be approved by NMFS prior to commencement of 
vessel use, and Vineyard Wind 1 must abide by this plan.
    Compliance with these measures will reduce the likelihood of vessel 
strike to the extent practicable. These measures

[[Page 75681]]

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 does not authorize 
take from this activity under this IHA.

           Table 10--Vessel Strike Avoidance Separation Zones
------------------------------------------------------------------------
                                                  Vessel separation zone
             Marine mammal species                         (m)
------------------------------------------------------------------------
North Atlantic right whale.....................                      500
Other ESA-listed species and non-North Atlantic                      100
 right whale large whales......................
Other marine mammals \a\.......................                       50
------------------------------------------------------------------------
\a\ With the exception of seals and delphinid(s) from the genera
  Delphinus, Lagenorhynchus, Stenella, or Tursiops, as described below.

Seasonal and Daily Restrictions

    Temporal restrictions in places where marine mammals are 
concentrated, engaged in biologically important behaviors, and/or 
present in sensitive life stages are effective measures for reducing 
the magnitude and severity of human impacts. The temporal restrictions 
described here are built around North Atlantic right whale protection. 
Based upon the best scientific information available (Roberts et al., 
2023), the highest densities of North Atlantic right whales in the 
specific geographic region are expected during the months of January 
through May, with an increase in density starting in December. However, 
North Atlantic right whales may be present in the LIA throughout the 
year.
    NMFS is requiring seasonal work restrictions to minimize risk of 
noise exposure to the North Atlantic right whales incidental to pile 
driving activities to the extent practicable. These seasonal work 
restrictions are expected to reduce the number of takes of North 
Atlantic right whales and further reduce vessel strike risk. These 
seasonal restrictions also afford protection to other marine mammals 
that are known to use the LIA with greater frequency during winter 
months, including other baleen whales.
    As described previously, no impact pile driving activities may 
occur January 1 through May 31st. Vineyard Wind plans to install no 
more than 1 pile per day and only initiate impact pile driving during 
daylight hours. Foundation installation will not be initiated later 
than 1.5 hours before 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.
    Monopiles must be no larger than 9.6 m in diameter. The impact 
hammer operator must not exert more than 4,000 kJ on the pile being 
installed. No more than one pile may be installed at a given time 
(i.e., concurrent/simultaneous pile driving may not occur).

Noise Attenuation Systems

    Vineyard Wind 1 is required to employ noise abatement systems 
(NASs), also known as noise attenuation systems, during all foundation 
installation activities to reduce the sound pressure levels that are 
transmitted through the water. This will reduce acoustic ranges to the 
Level A harassment and Level B harassment acoustic thresholds and 
minimize, to the extent practicable, any acoustic impacts resulting 
from these activities. Vineyard Wind is required to use a double big 
bubble curtain (DBBC) and HSD in addition to an enhanced BBC 
maintenance schedule. The refined NAS design (DBBC + HSD + enhanced BBC 
maintenance schedule) used during the 2023 construction activities will 
be used on the 15 remaining piles to minimize noise levels. A single 
bubble curtain, alone or in combination with another NAS device, may 
not be used for pile driving, as received SFV data reveals this 
approach was unlikely to attenuate sound sufficiently to be consistent 
with the target sound reduction of 6 dB. Moreover, the Level B 
harassment take estimates and impact analysis, as well as the 
associated findings, are based upon the assumption that the refined NAS 
design (DBBC + HSD + enhanced BC maintenance schedule) will be used and 
that the ensonification distances measured in the 2023 SFVs under the 
same conditions will occur for the 15 remaining piles. The DBC and HSD 
must reduce noise levels to those not exceeding expected ranges to 
Level A harassment and Level B harassment isopleths corresponding to 
those modeled assuming 6-dB sound attenuation, pending results of SFV 
(see Sound Field Verification section below).
    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; those 
with larger bubbles tend to perform a bit better and more reliably, 
particularly when deployed with two separate rings (Bellmann, 2014; 
Koschinski and L[uuml]demann, 2013; Nehls et al., 2016). Encapsulated 
bubble systems (i.e., 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

[[Page 75682]]

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, Vineyard Wind 1 will be 
required to maintain numerous operational performance standards, 
including the enhanced BBC maintenance protocol (Vineyard Wind 1 
Enhanced BBC Technical Memo, 2023). These standards are defined in the 
IHA and include, but are not limited to, a requirement that 
construction contractors train personnel in the proposed balancing of 
airflow to the bubble ring; and a requirement that Vineyard Wind 1 
submit a performance test and maintenance report to NMFS within 72 
hours following the performance test. Corrections to the attenuation 
device to meet regulatory requirements must occur prior to use during 
foundation installation activities. In addition, a full maintenance 
check (e.g., manually clearing holes) must occur prior to each pile 
being installed. The HSD system Vineyard Wind 1 plans to use would be 
employed, in coordination with the DBBC, as a near-field attenuation 
device close to the monopiles (K[uuml]sel et al., 2024). Vineyard Wind 
1 also plans to follow a DBBC enhanced maintenance protocol, which was 
used during the 2023 Vineyard Wind 1 pile installation activities. The 
DBBC enhanced maintenance protocol includes an adjustment from typical 
bubble curtain operations to drill hoses after every deployment to 
maximize performance in siltier sediments which are present in the 
Lease Area. The DBBC enhanced maintenance protocol also includes DBBC 
hose inspection and clearance, pressure testing of DBBC hoses, visual 
inspection of DBBC performance, and minimizing disturbance of the DBBC 
hoses on the seafloor.
    Vineyard Wind 1 is required to submit an updated SFV plan to NMFS 
for approval prior to installing foundations, and must abide by this 
plan. Vineyard Wind 1 is 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 expected. 
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.

Clearance and Shutdown Zones

    NMFS requires the establishment of both clearance and shutdown 
zones during impact pile driving. 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. Due to the increased density of North Atlantic 
right whales during the months of November and December, as compared to 
densities in June through October, more stringent clearance and 
shutdown mitigation measures are planned for these months.
    All relevant clearance and shutdown zones during project activities 
will be monitored by NMFS-approved PSOs and PAM operators. PAM would be 
conducted at least 24 hours in advance of any pile driving activities. 
At least one PAM operator would review data from at least 24 hours 
prior to foundation installation (to increase situational awareness) 
and actively monitor hydrophones for 60 minutes prior to commencement 
of these activities. Any North Atlantic right whale sighting at any 
distance by visual PSOs, or acoustically detected within the PAM 
monitoring zone (10 km), triggers a delay to commencing pile driving or 
a 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 pile driving activities, Vineyard Wind must 
ensure designated areas (i.e., clearance zones, table 11) are clear of 
marine mammals before commencing activities to minimize the potential 
for and degree of harassment. PSOs must visually monitor clearance 
zones for marine mammals for a minimum of 60 minutes prior to 
commencing foundation installation activities. During this period, the 
clearance zones will be monitored acoustically by a PAM operator as 
well. All clearance zones (table 11) must be confirmed to be free of 
marine mammals for 30 minutes immediately prior to commencing 
foundation installation activities. The minimum visibility zone, 
defined as the area over which PSOs must be able to visually detect 
marine mammals, would extend 4,000 m for monopile installation from the 
pile being driven (table 11) and must be visible for 60 minutes. The 
minimum visibility zone corresponds to the modeled Level A harassment 
distance for low-frequency cetaceans plus twenty percent, and rounded 
up to the nearest 0.5 km. The minimum visibility zone must be visually 
cleared of marine mammals. If this zone is obscured to the degree that 
effective monitoring cannot occur, pile driving must be delayed. 
Minimum visibility zone and clearance zones are defined and provided in 
table 11 for all species.
    From November 1 to December 31, vessel-based surveys will be used 
to confirm the clearance zone (10 km PAM clearance zone (6.2 mi); table 
11) is clear of North Atlantic right whales prior to pile driving. The 
survey will be supported by a team of nine PSOs coordinating visual 
monitoring across two PSO support vessels and the pile driving 
platform. The two PSO support vessels, each with three active on-duty 
PSOs, will be positioned at the same distance on either side of the 
pile driving vessel. Each PSO support vessel would transit along a 
steady course along parallel track lines in opposite directions. Each 
transect line will be surveyed at a similar speed, not to exceed 10 kn 
(11.5 mph) and would last for approximately 30 minutes to 1 hour. If a 
North Atlantic right whale is sighted at any distance during the 
vessel-based survey, pile driving must be delayed until the following 
day unless an additional vessel-based survey with additional transects 
is conducted to determine the clearance zone is clear of North Atlantic 
right whales. Further details on PSO support vessel monitoring efforts 
are described in the Vineyard Wind 1 application section 11, table 17.
    Once pile driving activity begins, any marine mammal entering their 
respective shutdown zone will trigger the activity to cease. In the 
case of pile driving, the shutdown requirement may be waived if is not 
practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals, or if the lead engineer determines there 
is pile refusal or pile instability.
    In situations when shutdown is called for, but Vineyard Wind 1 
determines shutdown is not practicable due to aforementioned emergency 
reasons,

[[Page 75683]]

reduced hammer energy must be implemented when the lead engineer 
determines it is practicable. Specifically, pile refusal or pile 
instability could result in the inability 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. 
Vineyard Wind 1 must document and report to NMFS all cases where the 
emergency exemption is taken.
    After shutdown, impact pile driving may be reinitiated once all 
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, impact 
pile driving may be reinitiated but must be used to maintain stability. 
From June 1-October 31, if pile driving has been shut down due to the 
presence of a North Atlantic right whale, pile driving must not restart 
until the North Atlantic right whale has not been visually or 
acoustically detected for 30 minutes. Upon re-starting pile driving, 
soft-start protocols must be followed if pile driving has ceased for 30 
minutes or longer. From November 1-December 31, if a North Atlantic 
right whale is detected either via real-time PAM or vessel-based 
surveys at any distance from the pile driving location, pile driving 
must be delayed and must not commence until the following day unless a 
follow-up vessel-based survey confirms the clearance zone is clear of 
North Atlantic right whales upon completion of the survey, as 
determined by the lead PSO. During November 1-December 31, if pile 
driving has been shut down or delayed due to the presence of 3 or more 
North Atlantic right whales, pile driving will be postponed until the 
next day. Shutdown zones vary by species and are shown in table 11 
below.

  Table 11--Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones, in Meters (m), During Impact
                                                  Pile Driving
----------------------------------------------------------------------------------------------------------------
                                                                                    Pilot Whales,
                                        North Atlantic right         Other        harbor porpoises,   Pinnipeds
          Monitoring zones                   whales \a\        mysticetes/sperm    and delphinids      (m) \b\
                                                                whales  (m) \b\        (m) \b\
----------------------------------------------------------------------------------------------------------------
Minimum Visibility Zone \c\.........                                     4,000
                                     ---------------------------------------------------------------------------
Visual Clearance Zone...............  Any distance from pile                500                 160          160
                                       driving PSOs.
PAM Clearance and Shutdown Zone \d\.  10,000.................               500                 160          160
Visual Shutdown Zone................  Any distance from pile                500                 160          160
                                       driving PSOs.
                                     ---------------------------------------------------------------------------
Distance to Level B Harassment                                           5,720
 Threshold.
----------------------------------------------------------------------------------------------------------------
\a\ From December 1-December 31, vessel based surveys using two PSO support vessels would confirm the 10 km (6.2
  mi) PAM clearance zone is clear of North Atlantic right whales. If three or more North Atlantic right whales
  are sighted in November or December, pile driving will be delayed for 24 hours.
\b\ Pile driving may commence when either the marine mammal has voluntarily left the respective clearance zone
  and has been visually confirmed beyond that clearance zone, or when 30 minutes (North Atlantic right whales
  (June-October), other non-North Atlantic right whale mysticetes, sperm whales, pilot whales, Risso's dolphins)
  or 15 minutes (all other delphinids and pinnipeds) have elapsed without re-detection .
\c\ Minimum visibility zone is the minimum distance that must be visible prior to initiating pile driving, as
  determined by the lead PSO. The minimum visibility zone corresponds to the Level A harassment distance for low-
  frequency cetaceans plus twenty percent, and rounded up to the nearest 0.5 km.
\d\ The PAM system must be capable of detecting North Atlantic right whales at 10 km during pile driving. The
  system should also be designed to detect other marine mammals to the maximum extent practicable; however, it
  is not required these other species be detected out to 10 km given higher frequency calls and echolocation
  clicks are not typically detectable at large distances.

    For any other in-water construction heavy machinery activities 
(e.g., trenching, cable laying, etc.), if a marine mammal is on a path 
towards or comes within 10 m (32.8 ft) of equipment, Vineyard Wind 1 
would be required to delay or 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.
    In consideration of a public comment, NMFS has included a 
requirement for Vineyard Wind 1 to shutdown pile driving in the event 
of a live cetacean stranding where the NMFS Marine Mammal Stranding 
Network is engaged in herding or other interventions to return animals 
to the water. Marine mammals involved in live stranding events (or 
near-shore atypical milling) are considered especially susceptible to 
the effects of additional stressors. These shutdown procedures are not 
related to the investigation of the cause of any such stranding and 
their implementation is not intended to imply that the activity of the 
authorized entity is the cause of the stranding. Rather, shutdown 
procedures are intended to protect marine mammals exhibiting indicators 
of distress by minimizing their exposure to possible additional 
stressors, regardless of the factors that contributed to the stranding. 
Vineyard Wind 1 will be required to shut down pile driving activities 
according to the measure described in the IHA.

Soft-Start

    The use of a soft-start 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 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. Vineyard Wind 1 is be required to utilize a soft-
start protocol for impact pile driving of monopiles by performing 4-6 
single hammer strikes at less than 40 percent of the maximum hammer 
energy followed by at least 1 minute delay before the subsequent hammer 
strikes. This process shall be conducted at least three times (e.g., 4-
6 single strikes,

[[Page 75684]]

delay, 4-6 single strikes, delay, 4-6 single strikes, delay) for a 
minimum of 20 minutes. NMFS notes that it is difficult to specify a 
reduction in energy for any given hammer because of variation across 
drivers and installation conditions. Vineyard Wind will reduce energy 
based on consideration of site-specific soil properties and other 
relevant operational considerations.
    Soft start would be required at the beginning of each day's 
activity and at any time following a cessation of activity of 30 
minutes or longer. Prior to soft-start, the operator must receive 
confirmation from the PSO that the clearance zone is clear of any 
marine mammals.
    Based on our evaluation of the applicant's measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable 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

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. NMFS' MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorization 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 while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the activity; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and,
     Mitigation and monitoring effectiveness.
    Separately, monitoring is also regularly used to support mitigation 
implementation, which is referred to as mitigation monitoring, and 
monitoring plans typically include measures that both support 
mitigation implementation and increase our understanding of the impacts 
of the activity on marine mammals.

Protected Species Observer and PAM Operator Requirements

    PSOs are trained professionals who are tasked with visual 
monitoring for marine mammals during pile driving activities. The 
primary purpose of a PSO is to carry out the monitoring, collect data, 
and, when appropriate, call for the implementation of mitigation 
measures. Visual monitoring by NMFS-approved PSOs will be conducted at 
a minimum of 60 minutes before, during, and 30 minutes after all 
planned impact pile driving activities. In addition to visual 
observations, NMFS requires Vineyard Wind 1 to conduct PAM using NMFS-
approved PAM operators during impact pile driving and vessel transit. 
PAM must also be conducted for 24 hours in advance and during impact 
pile driving activities. Visual observations and acoustic detections 
will be used to support the mitigation measures (e.g., clearance 
zones). To increase understanding of the impacts of the activity on 
marine mammals, PSOs must record all incidents of marine mammal 
occurrence at any distance from the piling locations. PSOs would 
document all behaviors and behavioral changes, in concert with distance 
from an acoustic source.
    NMFS will require PAM conducted by NMFS-approved PAM operators, 
following standardized measurement, processing methods, reporting 
metrics, and metadata standards for offshore wind. PAM alongside visual 
data monitoring is valuable to provide the most accurate record of 
species presence as possible, and these two monitoring methods are well 
understood to provide best results when combined together (e.g., Barlow 
and Taylor, 2005; Clark et al., 2010; Gerrodette et al., 2011; Van 
Parijs et al., 2021). Acoustic monitoring (in addition to visual 
monitoring) increases the likelihood of detecting marine mammals within 
the shutdown and clearance zones of project activities, which when 
applied in combination with required shutdowns helps to further reduce 
the risk of marine mammals being exposed to sound levels that could 
otherwise result in acoustic injury or more intense behavioral 
harassment.
    The exact configuration and number of PAM systems depends on the 
size of the zone(s) being monitored, the amount of noise expected in 
the area, and the characteristics of the signals being monitored. More 
closely spaced hydrophones would allow for more directionality and 
perhaps range to the vocalizing marine mammals; however, this approach 
would add additional costs and greater levels of complexity to the 
project. Larger baleen cetacean species (i.e., mysticetes), which 
produce loud and lower-frequency vocalizations, may be able to be heard 
with fewer hydrophones spaced at greater distances. However, smaller 
cetaceans (such as mid-frequency delphinids or 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). The configuration for collecting the 
required marine mammal data will be based upon the acoustic data 
acquisition methods used during the 2023 Vineyard Wind construction 
campaign (K[uuml]sel et al., 2024).
    NMFS does not formally administer any PSO or PAM operator training 
program or endorse specific providers but will approve PSOs and PAM 
operators that have successfully completed courses that meet the 
curriculum and trainer requirements. All PSOs and PAM operators must 
have successfully attained a bachelor's degree with a major in one of 
the natural sciences. The educational requirements may be waived if the 
PSO or PAM operator has acquired the relevant skills through alternate 
experience. Requests for such a waiver shall be submitted to NMFS and 
must include written justification. Alternate experience that may be 
considered includes, but is not limited to (1) secondary education and/
or experience comparable to PSO and/or PAM operator duties; (2) 
previous work experience conducting academic,

[[Page 75685]]

commercial, or government-sponsored marine mammal surveys; and (3) 
previous work experience as a PSO/PAM operator (PSOs/PAM operators must 
be in good standing and demonstrate good performance of PSO/PAM 
operator duties). All PSOs and PAM operators must have successfully 
completed a relevant training course within the last 5 years, including 
obtaining a certificate of course completion that would be submitted to 
NMFS. All PSOs and PAM operators must demonstrate good standing and 
consistently good performance of all assigned duties.
    For prospective PSOs and PAM operators not previously approved, or 
for PSOs and PAM operators whose approval is not current, NMFS must 
review and approve PSO and PAM operator qualifications. Vineyard Wind 1 
will be required to submit PSO and PAM operator 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 and/
or PAM experience, and be accompanied by relevant documentation of 
successful completion of necessary training. Should Vineyard Wind 1 
require additional PSOs or PAM operators throughout the project, 
Vineyard Wind 1 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. 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.
    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 have completed a PAM operator 
training course and demonstrate that they have prior experience with 
PAM software, equipment, and real-time acoustic detection systems. They 
must have prior experience independently analyzing archived and/or 
real-time PAM data to identify and classify baleen whale and other 
marine mammal vocalizations by species, including North Atlantic right 
whale and humpback whale vocalizations, and experience with 
deconflicting multiple species' vocalizations that are similar and/or 
received concurrently. The PAM operator must be able to identify and 
classify marine mammal acoustic detections by species in real-time 
(prioritizing North Atlantic right whales and noting other marine 
mammal vocalizations, when detected). At a minimum, for each acoustic 
detection, the PAM operator must be able to categorically determine 
whether a North Atlantic right whale is detected, possibly detected, or 
not detected, and notify the Lead PSO of any confirmed or possible 
detections, including baleen whale detections that cannot be identified 
to species. If the PAM software is capable of localization of sounds or 
deriving bearings and distance, the PAM operator must demonstrate 
experience using this technique. PAM operators must be independent 
observers (i.e., not construction personnel), and must demonstrate 
experience with relevant acoustic software and equipment. A Lead PAM 
operator must meet all of these requirements and have a minimum of 90 
days at-sea experience in the specified role or sufficient alternative 
experience.
    NMFS may approve PSOs as conditional or unconditional. An 
unconditional PSO is one who has completed training within the last 5 
years and attained the necessary experience (e.g.., demonstrate 
experience with monitoring for marine mammals at clearance and shutdown 
zone sizes similar to those expected to be produced during the 
respective activity). A conditional PSO may be one who has completed 
training in the last 5 years but has not yet attained the requisite 
field experience. Unconditionally approved PSOs are required for impact 
pile driving activities.
    Additionally, impact pile driving activities require PSOs and/or 
PAM operator monitoring to have a lead on duty. The visual PSO field 
team, in conjunction with the PAM team (i.e., marine mammal monitoring 
team) will have a lead member (designated as the ``Lead PSO'' or ``Lead 
PAM operator'') who will be required to meet the unconditional 
standard. Lead PSO or PAM operators must also have a minimum of 90 days 
at sea in the specified role, with the conclusion of the most recent 
relevant experience not more than 18 months previous and must also have 
experience specifically monitoring baleen whale species. A PSO may be 
trained and/or experienced as both a PSO and PAM operator and may 
perform either duty, pursuant to scheduling requirements (and vice 
versa).
    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, 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. 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.
    Vineyard Wind must work with the selected third-party PSO and PAM 
operator provider to ensure PSOs and PAM operators have all equipment 
(including backup equipment) needed to adequately perform necessary 
tasks. For PSOs, this includes, but is not limited to, accurate 
determination of distance and bearing to observed marine mammals, and 
to ensure that PSOs are capable of calibrating equipment as necessary 
for accurate distance estimates and species identification. PSO 
equipment, at a minimum, shall include:
     At least one thermal (infrared) imaging device suited for 
the marine environment;
     Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
     Global positioning units (GPS) (at least one plus 
backups);
     Digital cameras with a telephoto lens that is at least 
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least 
one plus backups). The camera or lens should also have an image 
stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and,
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    At least two PSOs on the pile driving vessel must be equipped with 
functional Big Eye binoculars (e.g., 25*150; 2.7 view angle; individual 
ocular focus; height control), Big Eye binocular would be pedestal 
mounted on the deck at the best vantage point that provides for optimal 
sea surface observation and PSO safety. PAM operators must have the 
appropriate equipment (i.e., a computer station equipped with a data 
collection software system available

[[Page 75686]]

wherever they are stationed) and use a NMFS-approved PAM system to 
conduct monitoring. During periods of low visibility (i.e., fog, 
precipitation, darkness, poor weather conditions), PSOs must use 
alternative monitoring technology (e.g., infrared or thermal cameras) 
to monitor mitigation zones. PSOs aboard the pile driving vessel must 
have access to two FLIR cameras with two screens, thermal clip-ons, 
hand-held night vision devices, and thermal monoculars. PSOs aboard the 
PSO support vessels must have access to one FLIR camera with a single 
screen, thermal clip-ons, hand-held night vision devices, and thermal 
monoculars. The equipment specified above may be provided by an 
individual PSO, the third-party PSO provider, or the operator, but 
Vineyard Wind 1 is responsible for ensuring PSOs have the proper 
equipment required to perform the duties specified in the IHA. 
Reference materials must be available aboard all project vessels for 
identification of protected species.
    PSOs and PAM operators are not be permitted to exceed 4 consecutive 
watch hours on duty at any time, must have a 2-hour (minimum) break 
between watches, and must not exceed a combined watch schedule of more 
than 12 hours in a 24-hour period. If the schedule includes PSOs and 
PAM operators on-duty for 2-hour shifts, a minimum 1-hour break between 
watches is allowed.
    The PSOs are responsible for monitoring the waters surrounding the 
pile driving site to the farthest extent permitted by sighting 
conditions, including pre-start clearance and shutdown zones, prior to, 
during, and following foundation installation activities. Monitoring 
must be done while free from distractions and in a consistent, 
systematic, and diligent manner. If PSOs cannot visually monitor the 
minimum visibility zone of 4 km (2.5 mi) prior to foundation pile 
driving at all times using the required equipment, pile driving 
operations must not commence or must shutdown if they are currently 
active. 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, and as much 
of the Level B harassment zone as possible. PAM operators may be 
located on a vessel or remotely on-shore, and must assist PSOs in 
ensuring full coverage of the clearance and shutdown zones. The PAM 
operator must monitor to and past the clearance zones for large whales 
as far as possible.
    All on-duty PSOs must remain in real-time contact with the on-duty 
PAM operator(s). PAM operators must immediately communicate all 
acoustic detections of marine mammals to PSOs, including any 
determination regarding species identification, distance, and bearing 
(where relevant) relative to the pile being driven and the degree of 
confidence (e.g., possible, probable detection) in the determination. 
The PAM operator must inform the Lead PSO(s) on duty of animal 
detections approaching or within applicable ranges of interest to the 
activity occurring via the data collection software system (i.e., 
Mysticetus or similar system) who must be responsible for requesting 
that the designated crewmember implement the necessary mitigation 
procedures (i.e., delay). All on-duty PSOs and PAM operator(s) must 
remain in contact with the on-duty construction personnel responsible 
for implementing mitigations (e.g., delay to pile driving) to ensure 
communication on marine mammal observations can easily, quickly, and 
consistently occur between all on-duty PSOs, PAM operator(s), and on-
water Project personnel. It is the responsibility of the PSO(s) on duty 
to communicate the presence of marine mammals as well as to communicate 
the action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    At least three PSOs (on the pile driving vessel) and one PAM 
operator must be on-duty and actively monitoring for marine mammals 60 
minutes before, during, and 30 minutes after foundation installation in 
accordance with a NMFS-approved PAM Plan. PAM must also be conducted 
for at least 24 hours prior to foundation pile driving activities, and 
the PAM operator must review all detections from the previous 24-hour 
period prior to pile driving activities to increase situational 
awareness. Throughout the year (June through December), at least three 
PSOs must also be on-duty and actively monitoring from PSO support 
vessels. There must be at least two PSO support vessels with on-duty 
PSOs during any pile driving activities from June through December.
    In addition to monitoring duties, PSOs and PAM operators are 
responsible for data collection. The data collected by PSO and PAM 
operators and subsequent analysis provide the necessary information to 
inform an estimate of the amount of take that occurred during the 
project, better understand the impacts of the project on marine 
mammals, address the effectiveness of monitoring and mitigation 
measures, and to adaptively manage activities and mitigation in the 
future. Data reported includes information on marine mammal sightings, 
activity occurring at time of sighting, monitoring conditions, and if 
mitigative actions were taken.
    For all visual monitoring efforts and marine mammal sightings, the 
following information must be collected and reported to NMFS Office of 
Protected Resources: the date and time that monitored activity begins 
or ends, the construction activities occurring during each observation 
period, the watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform), the PSO who sighted 
the animal, the time of sighting; the weather parameters (e.g., wind 
speed, percent cloud cover, visibility), the water conditions (e.g., 
Beaufort sea state, tide state, water depth); all marine mammal 
sightings, regardless of distance from the construction activity; 
species (or lowest possible taxonomic level possible), the pace of the 
animal(s), the estimated number of animals (minimum/maximum/high/low/
best), the estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.), the description 
(i.e., as many distinguishing features as possible of each individual 
seen, including length, shape, color, pattern, scars or markings, shape 
and size of dorsal fin, shape of head, and blow characteristics), the 
description of any marine mammal behavioral observations (e.g., 
observed behaviors such as feeding or traveling) and observed changes 
in behavior, including an assessment of behavioral responses thought to 
have resulted from the specific activity, the animal's closest distance 
and bearing from the pile being driven and estimated time entered or 
spent within the Level A harassment and/or Level B harassment zone(s), 
use of noise attenuation device(s), and specific phase of activity 
(e.g., soft-start for pile driving, active pile driving, etc.), the 
marine mammal occurrence in Level A harassment or Level B harassment 
zones, the description of any mitigation-related action implemented, or 
mitigation-related actions called for but not implemented, in response 
to the sighting (e.g., delay, shutdown, etc.) and time and location of 
the action, and other human activity in the area.
    On May 19, 2023, Vineyard Wind submitted a Pile Driving Monitoring 
Plan for the 2023 IHA, including an Alternative Monitoring Plan, which 
was approved by NMFS. The Plan included details regarding PSO and PAM 
monitoring protocols and equipment planned for use. More specifically, 
the

[[Page 75687]]

PAM portion of the plan included a description of all PAM equipment, 
addressed how the passive acoustic monitoring must follow standardized 
measurement, processing methods, reporting metrics, and metadata 
standards for offshore wind as described in NOAA and BOEM Minimum 
Recommendations for Use of Passive Acoustic Listening Systems in 
Offshore Wind Energy Development Monitoring and Mitigation Programs 
(Van Parijs et al., 2021). This plan also identified the efficacy of 
the technology at detecting marine mammals in the clearance and 
shutdown zones under all of the various conditions anticipated during 
construction, including varying weather conditions, sea states, and in 
consideration of the use of artificial lighting. On May 15, 2024, 
Vineyard Wind 1 submitted an updated Pile Driving Marine Mammal 
Monitoring Plan to NMFS Office of Protected Resources for review. The 
Plan must be approved by NMFS prior to the start of foundation pile 
driving, and Vineyard Wind 1 must abide by this plan.

Sound Field Verification

    Vineyard Wind 1 is required to conduct Thorough SFV measurements 
during impact pile driving activity associated with the installation 
of, at minimum, the first monopile foundation and Abbreviated SFV 
measurements during impact installation of the remaining monopiles to 
demonstrate noise levels are at or below those measured during the 2023 
Vineyard Wind construction campaign (K[uuml]sel et al., 2024) and 
considered as maximum distances in this IHA. NMFS recognizes that the 
SFV data collected in 2023 occurred in warmer weather months and that 
water temperature can affect the sound speed profile and thus 
propagation rates. Therefore, if impact pile driving takes place in 
December, comprehensive SFV measurements must be conducted during 
impact pile driving activity associated with the installation of, at 
minimum, the first monopile foundation. Subsequent Thorough SFV 
measurements will also be required should larger piles be installed or 
if additional piles are driven that are anticipated to produce louder 
sound fields than those previously measured (e.g., higher hammer 
energy, greater number of strikes, etc.). The required measurements and 
reporting associated with SFV can be found in the IHA. These 
requirements are extensive to ensure monitoring is conducted 
appropriately and the reporting frequency is such that Vineyard Wind 1 
would be required to make adjustments quickly (e.g., add additional 
sound attenuation) to ensure marine mammals are not experiencing noise 
levels above those considered in this analysis. For recommended SFV 
protocols for impact pile driving, please consult International 
Organization for Standardization (ISO) 18406 Underwater acoustics--
Measurement of radiated underwater sound from percussive pile driving 
(2017). On May 15, 2024, Vineyard Wind 1 submitted an updated SFV plan 
to NMFS Office of Protected Resources for review. The Plan must be 
approved by NMFS prior to the start of foundation pile driving, and 
Vineyard Wind 1 must abide by this plan.
    For any pile driving activities, Vineyard Wind 1 is also be 
required to submit interim and final SFV data results to NMFS and make 
corrections to the noise attenuation systems in the case that any SFV 
measurements demonstrate noise levels are above those measured during 
the 2023 Vineyard Wind construction campaign (K[uuml]sel et al., 2024) 
and considered as maximum distances in this IHA. These frequent and 
immediate reports will 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.

Reporting

    Prior to any construction activities occurring, Vineyard Wind 1 
must provide a report to NMFS Office of Protected Resources that 
demonstrates that all Vineyard Wind 1 personnel, which includes the 
vessel crews, vessel captains, PSOs, and PAM operators have completed 
all required training. NMFS requires standardized and frequent 
reporting from Vineyard Wind 1 during the active period of the IHA. 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. Vineyard Wind 1 is required to submit 
weekly, monthly, annual, and situational reports. Vineyard Wind 1 must 
review SFV results within 24 hours to determine whether measurements 
exceeded modeled (Level A harassment) and expected (Level B harassment) 
thresholds.
    Vineyard Wind 1 must provide the initial results of the SFV 
measurements to NMFS Office of Protected Resources in an interim report 
after each foundation installation event as soon as they are available 
and prior to a subsequent foundation installation, but no later than 48 
hours after each completed foundation installation event. The report 
must include, at minimum: hammer energies/schedule used during pile 
driving, including the total number of strikes and the maximum hammer 
energy; peak sound pressure level (SPLpk); root-mean-square 
sound pressure level that contains 90 percent of the acoustic energy 
(SPLrms); and sound exposure level (SEL, in single strike 
for pile driving, SELss,); for each hydrophone, including at 
least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 
percent exceedance) statistics for each metric; estimated marine mammal 
Level A harassment and Level B harassment isopleths; calculated using 
the maximum-over-depth L5 (95 percent exceedance level, maximum of both 
hydrophones) of the associated sound metric; comparison of 2023 
measured results 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; and hydrophone specifications including 
the type, model, and sensitivity. Vineyard Wind 1 is also required to 
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, Vineyard Wind 1 will be required 
to indicate full details of the calibration procedure, results, and any 
associated issues in the 48-hour interim reports.
    Vineyard Wind must review Abbreviated SFV results for each pile 
within 24 hours of completion of the foundation installation (inclusive 
of pile driving and any drilling), and, assuming measured levels at 750 
m did not exceed the thresholds defined during Thorough SFV, does not 
need to take any additional action. Results of Abbreviated SFV must be 
submitted with the weekly pile driving report.
    The final results of SFV measurements from each foundation 
installation must be submitted as soon as possible, but no later than 
90 days following completion of all annual SFV measurements. The final 
report must

[[Page 75688]]

include all details prescribed above for the interim report as well as, 
at minimum, the following: the peak sound pressure level 
(SPLpk); the root-mean-square sound pressure level that 
contains 90 percent of the acoustic energy (SPLrms); the 
single strike sound exposure level (SELss); the integration 
time for SPLrms, the spectrum, and the 24-hour cumulative 
SEL extrapolated from measurements at all hydrophones. The final report 
must also include at least the maximum, mean, minimum, median 
(L50) and L5 (95 percent exceedance) statistics 
for each metric; the SEL and SPL power spectral density and/or one-
third octave band levels (usually calculated as decidecade band levels) 
at the receiver locations should be reported; the sound levels reported 
must be in median, arithmetic mean, and L5 (95 percent 
exceedance) (i.e., average in linear space), and in dB, range of 
transmission loss coefficients; the local environmental conditions, 
such as wind speed, transmission loss data collected on-site (or the 
sound velocity profile); baseline pre- and post-activity ambient sound 
levels (broadband and/or within frequencies of concern); a description 
of depth and sediment type, as documented in the Construction and 
Operation Plan (COP), at the recording and foundation installation 
locations; the extents of the measured Level A harassment and Level B 
harassment zone(s); hammer energies required for pile installation and 
the number of strikes per pile; the hydrophone equipment and methods 
(i.e., recording device, bandwidth/sampling rate; distance from the 
pile where recordings were made; the depth of recording device(s)); a 
description of the SFV measurement hardware and software, including 
software version used, calibration data, bandwidth capability and 
sensitivity of hydrophone(s); any filters used in hardware or software; 
any limitations with the equipment; and other relevant information; the 
spatial configuration of the noise attenuation device(s) relative to 
the pile, a description of the noise abatement system and operational 
parameters (e.g., bubble flow rate, distance deployed from the pile, 
etc.), and any action taken to adjust the noise abatement system. A 
discussion which includes any observations which are suspected to have 
a significant impact on the results including but not limited to: 
observed noise mitigation system issues, obstructions along the 
measurement transect, and technical issues with hydrophones or 
recording devices.
    If at any time during the project Vineyard Wind 1 becomes aware of 
any issue(s) that 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, 
Vineyard Wind 1 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.
    Weekly Report--During foundation installation activities, Vineyard 
Wind 1 must compile and submit weekly marine mammal monitoring reports 
for foundation installation pile driving to NMFS Office of Protected 
Resources that document the daily start and stop of all pile driving 
activities; the start and stop of associated observation periods by 
PSOs; details on the deployment of PSOs; a record of all detections of 
marine mammals (acoustic and visual); any mitigation actions (or if 
mitigation actions could not be taken, provide reasons why); and 
details on the noise abatement system(s) (e.g., system type, distance 
deployed from the pile, bubble rate, etc.). Weekly reports will be due 
on Wednesday for the previous week (Sunday to Saturday). The weekly 
reports are also required to identify which turbines become operational 
and when (a map must be provided).
    Monthly Report--Vineyard Wind 1 is required to compile and submit 
monthly reports to NMFS Office of Protected Resources that include a 
summary of all information in the weekly reports, including project 
activities carried out in the previous month, vessel transits (number, 
type of vessel, and route); number of piles installed; all detections 
of marine mammals; and any mitigative actions taken. Monthly reports 
would be due on the 15th of the month for the previous month. The 
monthly report would also identify which turbines become operational 
and when (a map must be provided).
    Final Annual Reporting--Vineyard Wind 1 is required to submit its 
draft annual report to NMFS Office of Protected Resources on all visual 
and acoustic monitoring conducted under the IHA within 90 calendar days 
of the completion of activities occurring under the IHA. A final annual 
report must be prepared and submitted within 60 calendar days following 
receipt of any NMFS comments on the draft report. Information contained 
within this report is described at the beginning of this section. Full 
PAM detection data, metadata, and location of recorders must be 
submitted within 90 days following completion of impact pile driving 
foundations and every 90 calendar days for transit lane PAM using the 
International Organization for Standardization (ISO) standard metadata 
forms and instructions available on the NMFS Passive Acoustic Reporting 
System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Concurrently, the full 
acoustic recordings from real-time systems must also be sent to the 
National Centers for Environmental Information (NCEI, https://www.ncei.noaa.gov/products/passive-acoustic-data) for archiving.
    Situational Reporting--Specific situations encountered during the 
Project require immediate reporting. For instance, if a North Atlantic 
right whale is sighted with no visible injuries or entanglement at any 
time by project PSOs or project personnel, Vineyard Wind 1 must 
immediately report the sighting to NMFS as soon as possible or within 
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 must be 
reported within 24 hours. Vineyard Wind 1 should report sightings and 
acoustic detections by downloading and completing 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. Vineyard Wind 1 must 
save the completed spreadsheet as a .csv file and email it to NMFS 
Northeast Fisheries Science Center--Protected Resources Division 
(NEFSC-PRD) ([email protected]), NMFS GARFO-PRD 
([email protected]), and NMFS Office of Protected 
Resources (OPR) ([email protected]). If the sighting is 
in the Southeast (North Carolina through Florida), sightings will be 
reported via the template and to the Southeast Stranding Hotline 877-
WHALE-HELP (877-942-5343) with the observation information provided 
below (PAM detections are not reported to the Hotline). If Vineyard 
Wind 1 is unable to report a sighting through the spreadsheet within 24 
hours, Vineyard Wind 1 will call the relevant regional hotline (Greater 
Atlantic Region [Maine through Virginia] Hotline 866-755-6622; 
Southeast Stranding Hotline 877-WHALE-HELP) with the observation

[[Page 75689]]

information provided below. Observation information will include: 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). If 
Vineyard Wind 1 is unable to report via the template or the regional 
hotline, Vineyard Wind 1 will enter the sighting via the WhaleAlert app 
(https://www.whalealert.org/). If this is not possible, the sighting 
will be reported 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 would not be reported to 
WhaleAlert or the U.S. Coast Guard. If a non-North Atlantic right whale 
large whale is observed, Vineyard Wind 1 will be required to report the 
sighting via WhaleAlert app (https://www.whalealert.org/) as soon as 
possible but within 24 hours.
    In the event that personnel involved in the Project discover a 
stranded, entangled, injured, or dead marine mammal, Vineyard Wind 1 
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, Vineyard 
Wind must report the incident within 24 hours to NMFS OPR 
([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.
    If the injury, entanglement, or death was caused by a project 
activity, Vineyard Wind 1 will be required to immediately cease all 
activities until NMFS Office of Protected Resources is able to review 
the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the IHA. NMFS OPR may impose additional measures to minimize the 
likelihood of further prohibited take and ensure MMPA compliance 
consistent with the adaptive management provisions. Vineyard Wind 1 
would not resume their activities until notified by NMFS Office of 
Protected Resources.
    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, Vineyard Wind 1 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, Vineyard Wind must immediately report the incident to NMFS 
OPR ([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. If there is 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, Vineyard Wind 1 will be required to 
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 IHA. NMFS OPR may impose additional 
measures to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. Vineyard Wind 1 may not resume their activities 
until notified by NMFS OPR.
    Sound Field Verification--Vineyard Wind 1 will be required to 
submit interim SFV reports after each foundation installation within 48 
hours. A final SFV report for all monopile foundation installation 
monitoring will be required within 90 days following completion of 
acoustic monitoring.

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

[[Page 75690]]

(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'' through harassment, NMFS 
considers other factors, such as the likely nature of any impacts or 
responses (e.g., intensity, duration), the context of any impacts or 
responses (e.g., critical reproductive time or location, foraging 
impacts affecting energetics), as well as effects on habitat, and the 
likely effectiveness of the 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 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 of Marine Mammals section, we estimated the 
maximum number of takes by Level A harassment and Level B harassment 
that could occur from Vineyard Wind's specified activities based on the 
methods described. The impact that any given take would have is 
dependent on many case-specific factors that need to be considered in 
the negligible impact analysis (e.g., the context of behavioral 
exposures such as duration or intensity of a disturbance, the health of 
impacted animals, the status of a species that incurs fitness-level 
impacts to individuals, etc.). In this notice of the final IHA, we 
evaluate the likely impacts of the harassment takes that are authorized 
in the context of the specific circumstances surrounding these 
predicted takes. We also collectively evaluate this information, as 
well as other more taxa-specific information and mitigation measure 
effectiveness, in group-specific discussions that support our 
negligible impact conclusions for each stock. As described above, no 
serious injury or mortality is expected or authorized for any species 
or stock.
    We base our analysis and negligible impact determination on the 
number of takes that are authorized, and extensive qualitative 
consideration of other contextual factors that influence the degree of 
impact of the takes on the affected individuals and the number and 
context of the individuals affected.
    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 1 given that some of the anticipated 
effects of the Vineyard Wind 1 construction activities on marine 
mammals are expected to be relatively similar in nature. Where there 
are meaningful differences between species or stocks--as is the case of 
the North Atlantic right whale--they are included as separate 
subsections below.
    Last, we provide a negligible impact determination for each species 
or stock, providing species or stock-specific information or analysis 
where appropriate, for example for North Atlantic right whales given 
the population status. Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of Vineyard Wind's activities, and then providing species- or 
stock-specific information allows us to avoid duplication while 
ensuring that we have analyzed the effects of the specified activities 
on each affected species or stock.
    As described previously, no serious injury or mortality is 
anticipated or authorized in this IHA. Any Level A harassment 
authorized would be in the form of auditory injury (i.e., PTS). For all 
species, the amount of take authorized represents the maximum amount of 
Level A harassment and Level B harassment that is 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 and for a brief duration. However, 
there is also growing evidence of the importance of contextual factors 
such as distance from a source in predicting marine mammal behavioral 
response to sound--i.e., sounds of a similar received level emanating 
from a more distant source have been shown to be less likely to evoke a 
response of equal magnitude relative to a closer sound source (DeRuiter 
and Doukara, 2012; Falcone et al., 2017). As described in the Potential 
Effects of Specified Activities on Marine Mammals and their Habitat 
section, the intensity and duration of any impact resulting from 
exposure to the Vineyard Wind 1 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. 
Level B harassment of marine mammals may consist of behavioral 
modifications (e.g., avoidance, temporary cessation of foraging or 
communicating, changes in respiration or group dynamics, masking) and 
may include auditory impacts in the form of temporary 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. 
Take by Level B harassment, then, may have a stress-related 
physiological component as well; however, we would not expect the 
Vineyard Wind 1 pile driving activities to produce conditions of long-
term and continuous exposure to noise leading to long-term 
physiological stress responses in marine mammals that could affect 
reproduction or survival.
    In the range of behavioral effects that might be expected to be 
part of a response that qualifies as an instance of Level B harassment 
(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 is close enough to the source to receive a 
comparatively higher level, is exposed continuously to one source for a 
longer time or is exposed intermittently to different sources 
throughout a day. Such effects might result in an animal having a more 
severe flight response and

[[Page 75691]]

leaving a larger area for a day or more or potentially losing feeding 
opportunities for a day. However, such severe behavioral effects that 
result in potentially lost feeding opportunities for animals are not 
considered a likely outcome of this activity.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral 
reactions to noise exposure, when taking place in a biologically 
important context, such as disruption of critical life functions, 
displacement, or avoidance of important habitat, are more likely to be 
significant if they last more than 1 day or recur on subsequent days 
(Southall et al., 2007) due to diel and lunar patterns in diving and 
foraging behaviors observed in many cetaceans (Baird et al., 2008; 
Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 2014). It 
is important to note the water depth in the Limited Installation Area 
is shallow (ranging up to 37 to 49.5 m), so deep diving species such as 
sperm whales are not expected to be engaging in deep foraging dives 
when exposed to noise above NMFS harassment thresholds during the 
specified activities. Therefore, we do not anticipate impacts to deep 
foraging behavior to be impacted by the specified activities.
    It is also important to note that the estimated number of takes 
does not necessarily equate to the number of individual animals 
Vineyard Wind 1 expects to harass (which is lower), but rather to the 
instances of take (i.e., exposures above the Level B harassment 
thresholds) that may occur. Some individuals of a species may 
experience recurring instances of take over multiple days throughout 
the year while some members of a species or stock may experience one 
instance of take exposure as they move through an area, which means 
that the number of individuals taken may be smaller than the total 
estimated takes for a 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 whereas for non-migrating species with larger amounts of 
predicted take, we expect that the total anticipated takes represent 
exposures of a smaller number of individuals of which some would be 
taken across multiple days.
    Impacts from pile driving will be minimized through implementation 
of mitigation measures, including use of a sound attenuation system, 
soft-starts, the implementation of clearance zones that would 
facilitate a delay to pile driving commencement, and implementation of 
shutdown zones. All these measures are designed to avoid or minimize 
harassment. For example, given sufficient notice through the use of 
soft-start, marine mammals are expected to move away from a sound 
source that is disturbing prior to becoming exposed to very loud noise 
levels. The requirement to couple visual monitoring and PAM before and 
during all foundation installation will increase the overall capability 
to detect marine mammals compared to one method alone.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if 
some smaller subset of the takes is in the form of a longer (several 
hours or a day) and more severe response, if they are not expected to 
be repeated over numerous or sequential days, impacts to individual 
fitness are not anticipated. Also, the effect of disturbance is 
strongly influenced by whether it overlaps with biologically important 
habitats when individuals are present--avoiding biologically important 
habitats will provide opportunities to compensate for reduced or lost 
foraging (Keen et al., 2021). Nearly all studies and experts agree that 
infrequent exposures of a single day or less are unlikely to impact an 
individual's overall energy budget (Farmer et al., 2018; Harris et al., 
2017; King et al., 2015; National Academy of Science, 2017; New et al., 
2014; Southall et al., 2007; Villegas-Amtmann et al., 2015).

Temporary Threshold Shift (TTS)

    TTS is one form of Level B harassment that marine mammals may incur 
through exposure to the Vineyard Wind 1 activities and, as described 
earlier, the authorized 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 Federal Register notice for 
the proposed IHA (89 FR 31008, April 23, 2024), 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 pile driving is a broadband noise sources but 
generates 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, the potential for TTS 
is higher in low-frequency cetaceans (i.e., mysticetes) than in 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 Vineyard Wind 1 pile driving 
activities would not typically span the entire frequency range of one 
vocalization type, much less span all types of vocalizations or other 
critical auditory cues for any given species. In addition, the required 
mitigation measures further reduce the potential for TTS in mysticetes.
    Generally, both the degree and the duration of TTS would be greater 
if the marine mammal is exposed to a higher level of energy (which 
would occur when the peak dB level is higher or the duration is 
longer). The threshold for the onset of TTS was discussed previously 
(see Estimated Take). 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 unlikely considering the 
required mitigation and the nominal speed of the receiving animal 
relative to the stationary sources such as impact pile driving. The 
recovery time of TTS is also of importance when considering the 
potential impacts from TTS. In TTS laboratory studies (as discussed in 
Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat), some using exposures of almost an hour in duration or up to 
217 SEL, almost all individuals recovered within 1 day (or less, often 
in minutes). While the pile driving activities last for hours a day, it 
is unlikely that most marine mammals would stay in the close vicinity 
of the source long enough to incur more severe TTS. Overall, given the 
few instances in which any individual might incur TTS, the low degree 
of TTS and the short anticipated duration, and the unlikely scenario 
that any TTS would overlap the entirety of an individual's 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

[[Page 75692]]

hearing sensitivity) reproduction or survival.

Permanent Threshold Shift (PTS)

    NMFS proposed to authorize a very small amount of take by PTS of 
some individual marine mammals of some species. The numbers of proposed 
takes by Level A harassment are relatively low for all marine mammal 
stocks and species (table 11). We anticipate that PTS may occur from 
exposure to impact pile driving, which produces sounds that are both 
impulsive and primarily concentrated in the lower frequency ranges 
(below 1 kHz) (David, 2006; Krumpel et al., 2021).
    There are no PTS data on cetaceans and only one instance of PTS 
being induced in older harbor seals (Reichmuth et al., 2019). However, 
available TTS data (of mid-frequency hearing specialists exposed to 
mid- or high-frequency sounds (Southall et al., 2007; NMFS, 2018; 
Southall et al., 2019a)) suggest that most threshold shifts occur in 
the frequency range of the source up to one octave higher than the 
source. We would anticipate a similar result for PTS. Further, no more 
than a small degree of PTS is expected to be associated with any of the 
incurred Level A harassment, given it is unlikely that animals would 
stay in the close vicinity of a source for a duration long enough to 
produce more than a small degree of PTS.
    PTS would consist of minor degradation of hearing capabilities 
occurring predominantly at frequencies one-half to one octave above the 
frequency of the energy produced by pile driving (i.e., the low-
frequency region below 2 kHz) (Cody and Johnstone, 1981; McFadden, 
1986; Finneran, 2015), not severe hearing impairment. If hearing 
impairment occurs from impact pile driving, it is most likely that the 
affected animal would lose a few decibels in its hearing sensitivity, 
which in most cases is not likely to meaningfully affect its ability to 
forage and communicate with conspecifics. In addition, during impact 
pile driving, given sufficient notice through use of required soft-
start prior to implementation of full hammer energy during impact pile 
driving, marine mammals are expected to move away from a sound source 
that is disturbing prior to it resulting in severe PTS.

Auditory Masking or Communication Impairment

    The 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 period of the signal, versus TTS, which 
continues beyond the duration of the signal. Also, though masking can 
result from the sum of exposure to multiple signals, none of these 
signals might individually cause TTS. Fundamentally, masking is 
considered more often in the context of chronic effects because masking 
is of more concern when an animal experiences masking for longer 
durations, which would typically happen as a result of exposure to 
multiple activities (e.g., in more heavily industrialized areas or near 
shipping lanes). Specifically, reduced ability to hear or interpret 
critical cues becomes much more likely to cause a problem for an animal 
the longer it is occurring. Also, inherent in the concept of masking is 
the fact that it is only present during the times that the animal and 
the source are in close enough proximity for the effect to occur (and 
further, when the animal was utilizing sounds at the masked frequency).
    As our analysis has indicated, we expect that impact pile driving 
may occur intermittently for several hours per day, for multiple days. 
Masking is fundamentally more of a concern at lower frequencies (which 
are pile driving dominant frequencies), because low-frequency signals 
propagate significantly further than higher frequencies and because 
they are more likely to overlap both the narrower low-frequency calls 
of mysticetes, as well as many non-communication cues related to fish 
and invertebrate prey, and geologic sounds that inform navigation. As 
mentioned above (see Description of Marine Mammals in the Area of 
Specified Activities), the LIA does not overlap critical habitat or 
BIAs for any species, and temporary avoidance of the pile driving area 
by marine mammals would likely displace animals to areas of sufficient 
habitat. In summary, the nature of the Vineyard Wind 1 activities, 
paired with habitat use patterns by marine mammals, does not support 
the likelihood of take due to masking effects or that masking would 
have the potential to affect reproductive success or survival, and we 
are not authorizing such take.

Impact on Habitat and Prey

    Construction activities may result in fish and invertebrate 
mortality or injury very close to the source, and the Vineyard Wind 1 
activities may cause some fish to leave the area of disturbance. It is 
anticipated that any mortality or injury would be limited to a very 
small subset of available prey, and the implementation of mitigation 
measures such as the use of a noise attenuation system and soft start 
during impact pile driving would further limit the degree of impact. 
Behavioral changes in prey in response to construction activities could 
temporarily impact marine mammals' foraging opportunities in a limited 
portion of the foraging range but, because of the relatively small area 
of the habitat that may be affected at any given time (e.g., around a 
pile being driven) and the temporary nature of the disturbance on prey 
species, the impacts to marine mammal habitat are not expected to cause 
significant or long-term negative consequences. There is no indication 
that displacement of prey would impact individual fitness and health, 
particularly since suitable prey would likely still be available in the 
environment in most cases following the cessation of acoustic exposure.
    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 mammal prey to the extent they would be unavailable for 
consumption. Although many species of marine mammal prey can detect 
electromagnetic fields, previous studies have shown little impacts on 
habitat use (Hutchinson et al., 2018). Burying the cables and the 
inclusion of protective shielding on cables will also minimize any 
impacts of electromagnetic fields on marine mammal prey.
    As discussed in the Description of the Specified Activity section, 
this IHA addresses the take incidental to the installation of 15 
foundations, which will gradually become operational following 
construction completion. Turbines may also become operational during 
the period of the IHA. While there are likely to be oceanographic 
impacts from the presence of operating turbines, meaningful 
oceanographic impacts relative to stratification and mixing that would 
significantly affect marine mammal foraging and prey over large areas 
in key foraging habitats, resulting in impacts to the reproduction or 
survival of any individual marine mammals, are not anticipated from the 
Vineyard Wind activities covered under this IHA, yet are likely to be 
minor if impacts do occur.
    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. For piscivorous marine

[[Page 75693]]

mammal species, the presence of structures could result in a beneficial 
reef effect which may lead to increases in the availability of prey. 
However, turbine presence and operation is generally likely to result 
in certain oceanographic effects in the marine environment, and may 
adversely alter aggregations and distribution of marine mammal 
zooplankton prey through changing the strength of tidal currents and 
associated fronts, changes in stratification, primary production, the 
degree of mixing, and stratification in the water column (Chen et al., 
2021; Johnson et al., 2021; Christiansen et al., 2022; Dorrell et al., 
2022). In the recently released BOEM and NOAA Fisheries North Atlantic 
Right Whale Strategy (BOEM et al., 2024), the agencies identify the 
conceptual pathway by which changes to ocean circulation could 
potentially lead to fitness reduction of North Atlantic right whales, 
who primarily forage on copepods (see figure 2 in the Strategy). As 
described in the Potential Effects to Marine Mammal Habitat section of 
the Federal Register notice for the proposed IHA, there is uncertainty 
regarding the intensity (or magnitude) and spatial extent of turbine 
operation impacts on marine mammals habitat, including planktonic prey. 
Recently, a National Academy of Sciences, Engineering, and Medicine 
panel of independent experts concluded that the impacts of offshore 
wind operations on North Atlantic right whales and their habitat in the 
Nantucket Shoals region is uncertain due to the limited data available 
at this time and recognized what data is available is largely based on 
models from the North Sea that have not been validated by observations 
(NAS, 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). Also, specific to this activity, the LIA is 
located outside of the higher North Atlantic right whale density areas 
in Southern New England and more than 20 km west of Nantucket Shoals, 
which is known to be a critical feeding area for North Atlantic right 
whales.

Mitigation To Reduce Impacts on All Species

    The IHA includes a variety of mitigation measures designed to 
minimize impacts on all marine mammals, with a focus on North Atlantic 
right whales (the latter is described in more detail below). For impact 
pile driving of foundation piles, ten 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 
triggering a delay or shutdown); (3) use of PAM to acoustically detect 
marine mammals, with a focus on detecting baleen whales (with any 
detection within designated zones triggering delay or shutdown); (4) 
implementation of clearance zones; (5) implementation of shutdown 
zones; (6) use of soft-start; (7) use of noise attenuation technology; 
(8) maintaining situational awareness of marine mammal presence through 
the requirement that any marine mammal sighting(s) by Vineyard Wind 1 
personnel must be reported to PSOs; (9) sound field verification 
monitoring; and (10) Vessel Strike Avoidance measures to reduce the 
risk of a collision with a marine mammal and vessel.
    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 activities with large 
harassment isopleths, Vineyard Wind 1 will be required to reduce the 
noise levels generated to the lowest levels practicable. 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 (Vineyard Wind 1 will not use a 
hammer with an energy rating greater than necessary to install piles). 
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, 
PAM, and maintaining awareness of marine mammal sightings reported in 
the region will aid in detecting marine mammals that would trigger the 
implementation of the mitigation measures. For North Atlantic right 
whales specifically, by far the most effective mitigation is the 
avoidance of pile driving January through May in the months with the 
highest densities of whales, and when they are expected to be engaged 
in foraging and other important behaviors (e.g., social, mating), as 
disruption of behavioral patterns during these month would be more 
likely to impact reproductive success or survival.

Mysticetes

    Five mysticete species (comprising five stocks) of cetaceans (North 
Atlantic right whale, humpback whale, fin whale, sei whale, and minke 
whale) may be taken by harassment. These species, to varying extents, 
utilize the specific geographic region, including the LIA, for the 
purposes of migration, foraging, and socializing. Mysticetes are in the 
low-frequency hearing group.
    Behavioral data on mysticete reactions to pile driving noise are 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying, which is less likely for 
mysticetes in this area), disruption of foraging activities (if they 
are occurring in the area), local masking around the source, associated 
stress responses, and impacts to prey, as well as TTS or PTS in some 
cases.
    NMFS reviewed recent PSO observational data from offshore wind 
projects in southern New England (i.e., South Fork at OCS-A-0517 and 
Vineyard Wind 1 at OCS-A-0501) where pile driving construction 
activities occurred. During pile-driving construction activities for 
Vineyard Wind 1, in 2023 from early June through December (RPS, 2023), 
there were 36 whale observations consisting of 4 unidentified non-North 
Atlantic right whales, 17 detections of humpback whales, eight 
detections of fin whales, six detections of minke whales, and one 
unidentified baleen whale (RPS, 2023). Three of these observations of 
mysticetes (one humpback whale sighting, one fin whale sighting, and 
one group of three fin whales) occurred while the hammer was engaged 
(which was operating at full power). Behaviors noted included 
surfacing, blowing, fluking, and feeding. At South Fork, a total of 39 
hours 32 minutes of active impact pile driving was conducted across 
installation of the 13 monopiles on 15 different days. The most PSO 
visual watch effort occurred aboard the Bokalift 2 (908 hours), and PSO 
effort from the four dedicated monitoring vessels ranged from 426 to 
757 hours. In total (with and without pile driving) foundation 
installation PSOs observed 348 mysticete groups comprising 552

[[Page 75694]]

individuals; 29 of these detections, totaling 51 individuals, occurred 
during pile driving (table 14 in South Fork Wind (2023)). None of the 
observed behaviors of mysticetes noted by either the Vineyard Wind 1 or 
South Fork PSOs were indicative of distress, alarm, or other adverse 
reactions (RPS, 2023; South Fork Wind, 2023).
    Mysticetes encountered in the LIA are expected to be migrating 
through and/or engaged in foraging behavior. The extent to which an 
animal engages in these behaviors in the area is species-specific and 
varies seasonally. Many mysticetes are expected to predominantly be 
migrating through the LIA towards or from primary feeding habitats 
(e.g., Cape Cod Bay, Great South Channel, and Gulf of St. Lawrence). 
While we have acknowledged in the Potential Effects to Marine Mammal 
Habitat section of the Federal Register notice for the proposed IHA (89 
FR 31008, April 23, 2024) that mortality, hearing impairment, or 
displacement of mysticete prey species may result locally from impact 
pile driving, given the very short duration of and broad availability 
of prey species in the area and the availability of alternative 
suitable foraging habitat for the mysticete species most likely to be 
affected, any impacts on mysticete foraging are expected to be minor. 
Whales temporarily displaced from the LIA are expected to have 
sufficient remaining feeding habitat available to them, and would not 
be prevented from feeding in other areas within the biologically 
important feeding habitats, including to the east near Nantucket 
Shoals. In addition, any displacement of whales or interruption of 
foraging bouts would be expected to be relatively temporary in nature.
    The potential for repeated exposures of individuals is dependent 
upon their residency time, with migratory animals unlikely to be 
exposed on repeated occasions and animals remaining in the area more 
likely to be exposed more than once. 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 11) 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 Level B harassment takes of a 
limited number of individuals across multiple days. In other words, the 
behavioral disturbance to any individual mysticete would, therefore, be 
expected to most likely occur within a single day, or potentially 
across a few days, and would not be expected to impact the animal's 
fitness for reproduction or survival.
    In general, the total duration of exposure would not be continuous 
throughout any given day and pile driving would not occur on all 
consecutive days due to weather delays or any number of logistical 
constraints Vineyard Wind 1 has identified, including the fact that the 
pile installation vessel must return to port after every 6 monopile 
foundations are installed to pick up additional monopiles. As mentioned 
in the Detailed Description of the Specified Activity section of the 
Federal Register notice for the proposed IHA, upon completion of 
installation of a batch of monopiles, the pile installation vessel 
would return to a Canadian port in Halifax to load an additional batch 
of monopiles. Species-specific analysis regarding potential for 
repeated exposures and impacts is provided below.
    Humpback whales, minke whales, fin whales and sei whales are the 
mysticete species for which PTS is anticipated and authorized. As 
described previously, PTS for mysticetes from some project activities 
may overlap frequencies used for communication, navigation, or 
detecting prey. However, given the nature and duration of the activity, 
the mitigation measures, and likely avoidance behavior, any PTS is 
expected to be of a small degree, would be limited to frequencies where 
pile driving noise is concentrated (i.e., only a small subset of their 
expected hearing range) and would not be expected to impact 
individuals' fitness for reproductive success or survival.

North Atlantic Right Whales

    North Atlantic right whales are listed as endangered under the ESA 
and as both depleted and strategic under the MMPA. As described in the 
Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat section of the Federal Register notice for the proposed IHA, 
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.
    This IHA authorizes 7 takes of North Atlantic right whale by Level 
B harassment only, which equates to approximately 2.1 percent of the 
stock abundance, if each take were considered to be of a different 
individual. No Level A harassment, serious injury, or mortality is 
anticipated or authorized for this species.
    As described in the Description of Marine Mammals in the Area of 
Specified Activities section, North Atlantic right whales are presently 
experiencing an ongoing UME (beginning in June 2017). Preliminary 
findings support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of North Atlantic 
right whales. Given the current status of the North Atlantic right 
whale, the loss of even one individual could significantly impact the 
population. Level B harassment of North Atlantic right whales resulting 
from the project's activities is expected to primarily be in the form 
of temporary avoidance of the immediate area of construction. Required 
mitigation measures will effect the least practicable adverse impact 
and the authorized number of takes of North Atlantic right whales would 
not exacerbate or compound the effects of the ongoing UME.
    In general, North Atlantic right whales in the LIA are expected to 
be engaging in migratory, feeding, and/or social behavior. Migrating 
North Atlantic right whales would typically be moving through the LIA, 
rather than lingering for extended periods of time (thereby limiting 
the potential for repeat exposures); however, foraging whales may 
remain in the LIA, with an average residence time of 13 days between 
December and May (Quintana-Rizzo et al., 2021). Southern New England, 
including the LIA, is part of a known migratory corridor for North 
Atlantic right whales and may be a stopover site for migrating North 
Atlantic right whales moving to or from southeastern calving grounds 
and northern foraging grounds. North Atlantic right whales are 
primarily concentrated in the northeastern and southeastern sections of 
the Massachusetts Wind Energy Area (MA WEA) (i.e., east of the LIA) 
during the summer (June-August) and winter (December-February) while 
distribution likely shifts to the west, closer to the LIA, into the RI/
MA WEA in the spring (March-May) (Quintana-Rizzo et al., 2021). 
However, North Atlantic right whales range outside of the LIA for their 
main feeding, breeding, and calving

[[Page 75695]]

activities. It is important to note that the IHA prohibits impact pile 
driving activities from January through May.
    Foundation installation pile driving will only occur during times 
when, based on the best available scientific data, North Atlantic right 
whales are less frequently encountered and less likely to be engaged in 
critical foraging behavior (although NMFS recognizes North Atlantic 
right whales may forage year-round in SNE). The potential types, 
severity, and magnitude of impacts are also anticipated to mirror that 
described in the general Mysticetes section above, including avoidance 
(the most likely outcome), changes in foraging or vocalization 
behavior, masking, a small amount of TTS, and temporary physiological 
impacts (e.g., change in respiration, change in heart rate). 
Importantly, the effects of the activities are expected to be 
sufficiently low-level and localized to specific areas as to not 
meaningfully impact important behaviors such as migration and foraging 
for North Atlantic right whales. As noted above, for North Atlantic 
right whales, this IHA would authorize up to 7 takes, by Level B 
harassment. These takes are expected to be in the form of temporary 
behavioral disturbance, such as slight displacement (but not 
abandonment) of migratory habitat or temporary cessation of feeding. 
Further, given many of these takes are generally expected to occur to 
different individual right whales migrating through (i.e., most 
individuals would not be impacted on more than one day in a year), with 
some subset potentially being exposed on no more than a few days within 
the year, they are unlikely to result in energetic consequences that 
could affect reproduction or survival of any individuals.
    Overall, NMFS expects that any behavioral harassment of 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 migrate, 
forage, or socialize in the LIA but are not expected to remain in this 
habitat for extensive durations relative to core foraging habitats to 
the east, south of Nantucket and Martha's Vineyard, Cape Cod Bay, or 
the Great South Channel (Quintana-Rizzo et al., 2021). Any temporarily 
displaced animals would be able to return to or continue to travel 
through the LIA and subsequently utilize this habitat once activities 
have ceased.
    Although acoustic masking may occur in the vicinity of the 
foundation installation activities, based on the acoustic 
characteristics of noise associated with pile driving (e.g., frequency 
spectra, short duration of exposure), NMFS expects masking effects to 
be minimal during impact pile driving. 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. TTS could also occur in some of the exposed 
animals, making it more difficult for those individuals to hear or 
interpret acoustic cues within the frequency range (and slightly above) 
of sound produced during impact pile driving; however, any TTS would 
likely be of low amount, limited duration, and limited to frequencies 
where most construction noise is centered (below 2 kHz). NMFS expects 
that right whale hearing sensitivity would return to pre-exposure 
levels shortly after migrating through the area or moving away from the 
sound source.
    As described in the Potential Effects of Specified Activities on 
Marine Mammals and Their Habitat section of the Federal Register notice 
for the proposed IHA, the distance of the receiver from the source 
influences the severity of response, with greater distances typically 
eliciting less severe responses. NMFS recognizes North Atlantic right 
whales migrating could be pregnant females (in the fall) and cows with 
older calves (in spring) and that these animals may slightly alter 
their migration course in response to any foundation pile driving; 
however, 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 
tStarhis portion of their habitat.
    North Atlantic right whale presence in the LIA 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). Even in consideration of 
recent habitat-use and distribution shifts, Vineyard Wind 1 would still 
be installing monopile foundations when the presence of North Atlantic 
right whales is expected to be relatively lower.
    Given this year-round habitat usage, and recognizing that where and 
when whales may actually occur during project activities is unknown as 
it depends on the annual migratory behaviors, NMFS is requiring a suite 
of mitigation measures designed to reduce impacts to North Atlantic 
right whales to the maximum extent practicable. These mitigation 
measures (e.g., seasonal/daily work restrictions, vessel separation 
distances, reduced vessel speed) would not only avoid the likelihood of 
vessel strikes but also would minimize the severity of behavioral 
disruptions, e.g., through sound reduction using attenuation systems 
and reduced temporal overlap of project activities and North Atlantic 
right whales. This would help further ensure that the takes by Level B 
harassment that are estimated to occur would not affect reproductive 
success or survivorship of individuals through detrimental impacts to 
energy intake or cow/calf interactions during migratory transit.
    As described in the Description of Marine Mammals in the Area of 
Specified Activities section, the Vineyard Wind Offshore Wind Project 
is being 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 210.0 km 
(while the width of the Lease Area, at the longest point at which it 
crosses the BIA, is approximately 14.5 km). 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); therefore, any associated bio-
energetic expenditure is anticipated to be small. Although North 
Atlantic right whales may forage in the LIA, there are no known 
breeding or calving areas within the LIA. Prey species are mobile 
(e.g., calanoid copepods can initiate rapid and directed escape 
responses) and are broadly distributed throughout the LIA. Therefore, 
any

[[Page 75696]]

impacts to prey that may occur are also unlikely to impact marine 
mammals.
    The most significant measure to minimize impacts to individual 
North Atlantic right whales is the seasonal moratorium on all 
foundation installation activities from January 1 through May 31 when 
North Atlantic right whale abundance in the LIA is expected to be 
highest and individuals are more likely to be engaged in foraging 
behaviors. NMFS also expects this measure to greatly reduce the 
potential for mother-calf pairs to be exposed to impact pile driving 
noise above the Level B harassment threshold during their annual spring 
migration through SNE from calving grounds to primary foraging grounds 
(e.g., Cape Cod Bay).
    Moreover, NMFS expects that the severity of any take of North 
Atlantic right whales would be reduced due to the other 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 may only begin in the 
absence of North Atlantic right whales (based on visual and passive 
acoustic monitoring). Once foundation installation activities have 
commenced, NMFS anticipates North Atlantic right whales would avoid the 
area, utilizing nearby waters to carry on pre-exposure behaviors. 
However, foundation installation activities must be shut down if a 
North Atlantic right whale is sighted at any distance or acoustically 
detected at any distance within the PAM monitoring zone, unless a 
shutdown is not feasible due to risk of injury or loss of life. 
Shutdown would be required anywhere if North Atlantic right whales are 
detected within or beyond the Level B harassment zone, further 
minimizing the duration and intensity of exposure. These measures are 
designed to avoid PTS and also reduce the severity of Level B 
harassment, including the potential for TTS. While some TTS could 
occur, given the mitigation measures (e.g., delay pile driving upon a 
sighting or acoustic detection and shutting down upon a sighting or 
acoustic detection), the potential for TTS to occur is low. NMFS 
anticipates that if North Atlantic right whales go undetected and they 
are exposed to foundation installation noise, it is unlikely a North 
Atlantic right whale would approach the sound source locations to the 
degree that they would expose themselves to very high noise levels. 
This is because typical observed whale behavior demonstrates likely 
avoidance of harassing levels of sound where possible (Richardson et 
al., 1985).
    The clearance and shutdown measures are most effective when 
detection efficiency is maximized, as the measures for North Atlantic 
right whales are triggered by a sighting or acoustic detection. To 
maximize detection efficiency, NMFS requires the combination of PAM and 
visual observers. NMFS also requires 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 
will 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 
will provide an opportunity for whales to move away from the source if 
they are undetected, reducing received levels.
    As described above, no serious injury or mortality, or Level A 
harassment of North Atlantic right whales is anticipated or authorized. 
Extensive North Atlantic right whale-specific mitigation measures 
(beyond the robust suite required for all species) are expected to 
further minimize the amount and severity of Level B harassment.
    Given the documented habitat use within the LIA, the seven 
instances of take by Level B harassment could include seven individual 
whales disturbed on 1 day each within the year, or it could represent a 
smaller number of whales impacted on 2 or 3 days, should North Atlantic 
right whales briefly use the LIA as a ``stopover'' site and stay or 
swim in and out of the LIA for more than day. At any rate, any impacts 
to North Atlantic right whales are expected to be in the form of lower 
level behavioral disturbance, given the extensive mitigation measures.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Vineyard Wind 1 activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take (by Level B harassment) anticipated and 
authorized would have a negligible impact on the North Atlantic right 
whale.

Fin Whale

    The fin whale is listed as endangered under the ESA, and the 
western North Atlantic stock is considered both depleted and strategic 
under the MMPA. No UME has been designated for this species or stock. 
No serious injury or mortality is anticipated or authorized for this 
species.
    This IHA authorizes up to 7 takes, by harassment only, over the 1 
year period. The maximum allowable take by Level A harassment and Level 
B harassment, is 1 and 6, respectively (which equates to approximately 
0.10 percent of the stock abundance, if each take were considered to be 
of a different individual). Given the close proximity of a fin whale 
feeding BIA (2,933 km\2\) from March through October, and that southern 
New England is generally considered a feeding area, it is likely that 
the seven takes could represent a few whales taken 2-3 times during the 
specified activity under this IHA.
    Level B harassment is expected to be primarily avoidance of the LIA 
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. We anticipate any potential PTS would be minor 
(limited to a few dB), and any 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 fin 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.
    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., 
2023). In SNE, fin whales densities are highest in the spring and 
summer months (Kraus et al., 2016; 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; Van Parijs et al., 
2023). However, fin whales feed more extensively in waters in the Great 
South Channel north to the Gulf Maine into the Gulf of St. Lawrence, 
areas north and east of the LIA (Hayes et al., 2023).
    As described previously, the LIA is in close proximity 
(approximately 8.0 km; 5.0 mi) to a small fin whale feeding BIA

[[Page 75697]]

(2,933 km\2\) east of Montauk Point, New York (figure 2.3 in LaBrecque 
et al., 2015) that is active from March to October. Foundation 
installations have seasonal work restrictions (i.e., spatial and 
temporal) such that the temporal overlap between the specified 
activities and the active BIA timeframe would exclude the months of 
March, April, and May. A separate larger year-round feeding BIA (18,015 
km\2\) located to the east in the southern Gulf of Maine does not 
overlap with the LIA and is located substantially further away 
(approximately 76.4 km (47.5 mi)), and would thus not be impacted by 
project activities. We anticipate that if foraging is occurring in the 
LIA and foraging whales are exposed to noise levels of sufficient 
strength, they would avoid the LIA and move into the remaining area of 
the feeding BIA that would be unaffected to continue foraging without 
substantial energy expenditure or, depending on the time of year, 
travel to the larger year-round feeding BIA.
    Given the documented habitat use within the area, some of the 
individuals taken would likely be exposed on multiple days. However, 
low level impacts are generally expected from any fin whale exposure. 
Given the magnitude and severity of the impacts discussed above 
(including no more than seven takes over the course of the IHA, and a 
maximum allowable take by Level A harassment and Level B harassment of 
one and six, respectively) and in consideration of the required 
mitigation and other information presented, Vineyard Wind's activities 
are not expected to result in impacts on the reproduction or survival 
of any individuals, much less affect annual rates of recruitment or 
survival. For these reasons, we have determined that the take by 
harassment anticipated and authorized will have a negligible impact on 
the western North Atlantic stock of fin whales.

Humpback Whale

    The West Indies Distinct Population Segment (DPS) of humpback 
whales is not listed as threatened or endangered under the ESA but the 
Gulf of Maine stock, which includes individuals from the West Indies 
DPS, is considered strategic under the MMPA. However, as described in 
the Description of Marine Mammals in the Area of Specified Activities 
section, humpback whales along the Atlantic Coast have been 
experiencing an active UME as elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida since 
January 2016. Of the cases examined, approximately 40 percent had 
evidence of human interaction (vessel strike or entanglement). 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 and the takes of 
humpback whales by Level B harassment authorized would not exacerbate 
or compound the effects of the ongoing UME.
    This IHA authorizes up to six takes by harassment only, over the 1 
year period. The maximum allowable take by Level A harassment and Level 
B harassment is two and four, respectively (this equates to 
approximately 0.43 percent of the stock abundance, if each take were 
considered to be of a different individual). Given that feeding is 
considered the principal activity of humpback whales in southern New 
England waters, these takes could represent a few whales exposed two or 
three times during the year.
    In the western North Atlantic, humpback whales feed during spring, 
summer, and fall over a geographic range encompassing the eastern coast 
of the U.S. Feeding is generally considered to be focused in areas 
north of the LIA, including in a feeding BIA in the Gulf of Maine/
Stellwagen Bank/Great South Channel, but has been documented off the 
coast of southern New England and as far south as Virginia (Swingle et 
al., 1993). Foraging animals tend to remain in the area for extended 
durations to capitalize on the food sources.
    Assuming humpback whales who are feeding in waters within or 
surrounding the LIA behave similarly, we expect that the predicted 
instances of disturbance could consist of some individuals that may be 
exposed on multiple days if they are utilizing the area as foraging 
habitat. As with other baleen whales, if migrating, such individuals 
would likely be exposed to noise levels from the project above the 
harassment thresholds only once during migration through the LIA.
    For all the reasons described in the Mysticetes section above, we 
anticipate any potential PTS and TTS would be concentrated at half or 
one octave above the frequency band of pile driving noise (most sound 
is below 2 kHz), which does not include the full predicted hearing 
range of baleen whales. If TTS is incurred, hearing sensitivity would 
likely return to pre-exposure levels relatively shortly after exposure 
ends. Any masking or physiological responses would also be of low 
magnitude and severity for reasons described above.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 6 takes over the course of the 1-year IHA, and 
a maximum allowable take by Level A harassment and Level B harassment 
of two and four, respectively), and in consideration of the required 
mitigation measures and other information presented, Vineyard Wind 1 
activities are not expected to result in impacts on the reproduction or 
survival of any individuals, much less affect annual rates of 
recruitment or survival. For these reasons, we have determined that the 
take by harassment anticipated and authorized will have a negligible 
impact on the Gulf of Maine stock of humpback whales.

Minke Whale

    Minke whales are not listed under the ESA, and the Canadian East 
Coast stock is neither depleted nor strategic under the MMPA. There are 
no known areas of specific biological importance in or adjacent to the 
LIA. As described in the Description of Marine Mammals in the Area of 
Specified Activities 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.
    This IHA authorizes up to 1 take by Level A harassment and 28 takes 
by Level B harassment over the 1-year period (equating to approximately 
0.13 percent of the stock abundance, if each take were considered to be 
of a different individual). As described in the Description of Marine 
Mammals in the Area of Specified Activities section, minke whales 
inhabit coastal waters during much of the year and are common offshore 
the U.S. Eastern Seaboard with a strong seasonal component in the 
continental shelf and in deeper, off-shelf waters (CETAP, 1982; Hayes 
et al., 2022; Hayes et al., 2023). Spring through fall are times of 
relatively widespread and common acoustic occurrence on the continental 
shelf. From September through April, minke whales are frequently 
detected in deep-ocean waters throughout most of the western North 
Atlantic (Clark and Gagnon, 2002; Risch et al., 2014; Hayes et al., 
2023). Because minke whales are migratory and their known feeding areas 
are north and east of the LIA, including a feeding BIA in the 
southwestern Gulf of Maine and George's Bank, they would be more likely 
to be transiting through (with each take representing a separate 
individual), though it is possible that some subset of individual 
whales exposed could be taken up to a few times during the effective 
period of the IHA.
    As previously detailed in the Description of Marine Mammals in the 
Area of Specified Activities section, there is a UME for minke whales 
along

[[Page 75698]]

the Atlantic coast, from Maine through South Carolina, with the highest 
number of deaths in Massachusetts, Maine, and New York. Preliminary 
findings in several of the whales have shown evidence of human 
interactions or infectious diseases. However, we note that the 
population abundance is greater than 21,000, and the take by harassment 
authorized through this action is not expected to exacerbate the UME.
    We anticipate the impacts of this harassment to follow those 
described in the general Mysticetes section above. Any potential PTS 
would be minor (limited to a few dB) and any PTS or TTS would be of 
short duration and concentrated at half or one octave above the 
frequency band of pile driving noise (most sound is below 2 kHz) which 
does not include the full predicted hearing range of minke whales. If 
TTS is incurred, hearing sensitivity would likely return to pre-
exposure levels relatively shortly after exposure ends. Level B 
harassment would be temporary, with primary impacts being temporary 
displacement from the LIA but not abandonment of any migratory or 
foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 29 takes of the course of the 1-year IHA, and a 
maximum allowable take by Level A harassment and Level B harassment of 
1 and 28, respectively), and in consideration of the required 
mitigation and other information presented, Vineyard Wind's activities 
are not expected to result in impacts on the reproduction or survival 
of any individuals, much less affect annual rates of recruitment or 
survival. For these reasons, we have determined that the take by 
harassment anticipated and authorized will have a negligible impact on 
the Canadian Eastern Coastal stock of minke whales.

Sei Whale

    Sei whales are listed as endangered under the ESA, and the Nova 
Scotia stock is considered both depleted and strategic under the MMPA. 
There are no known areas of specific biological importance in or 
adjacent to the LIA, and no UME has been designated for this species or 
stock. No serious injury or mortality is anticipated or authorized for 
this species.
    The IHA authorizes up to three takes by harassment over the 1-year 
period. The maximum allowable take by Level A harassment and Level B 
harassment is one and two, respectively (combined, this annual take 
(n=3) equates to approximately 0.05 percent of the stock abundance, if 
each take were considered to be of a different individual). As 
described in the Description of Marine Mammals in the Area of Specified 
Activities section, most of the sei whale distribution is concentrated 
in Canadian waters and seasonally in northerly U.S. waters, although 
they can occur year-round in SNE. Because sei whales are migratory and 
their known feeding areas are east and north of the LIA (e.g., there is 
a feeding BIA in the Gulf of Maine), they would be more likely to be 
moving through (i.e., not foraging), and considering this and the very 
low number of total takes, it is unlikely that any individual would be 
exposed more than once within the IHA period.
    With respect to the severity of those individual takes by Level B 
harassment, we anticipate impacts to be limited to low-level, temporary 
behavioral responses with avoidance and potential masking impacts in 
the vicinity of the WTG installation to be the most likely type of 
response. Any potential PTS and TTS would likely be concentrated at 
half or one octave above the frequency band of pile driving noise (most 
sound is below 2 kHz), which does not include the full predicted 
hearing range of sei whales. Moreover, any TTS would be of a small 
degree. Any avoidance of the LIA 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 three takes of the course of the 1-year IHA, 
and a maximum allowable take by Level A harassment and Level B 
harassment, of one and two, respectively), and in consideration of the 
required mitigation and other information presented, Vineyard Wind 1 
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 proposed to be authorized will have 
a negligible impact on the Nova Scotia stock of sei whales.

Odontocetes

    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below. Odontocetes include 
dolphins, porpoises, and all other whales possessing teeth and we 
further divide them into the following subsections: sperm whales, 
dolphins and small whales, and harbor porpoises. These sub-sections 
include more specific information, as well as conclusions for each 
stock represented.
    No serious injury or mortality is anticipated or authorized. We 
anticipate that, given ranges of individuals (i.e., that some 
individuals remain within a small area for some period of time) and 
non-migratory nature of some odontocetes in general (especially as 
compared to mysticetes), 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 of an individual. While we expect animals to avoid the area 
during foundation installation, their habitat range is extensive 
compared to the area ensonified during these activities. As such, NMFS 
expects any avoidance behavior to be limited to the area near the sound 
source.
    As described earlier, Level B harassment may include direct 
disruptions in behavioral patterns (e.g., avoidance, changes in feeding 
or vocalizations), as well as those associated with stress responses or 
TTS. While masking could also occur during foundation installation, it 
would only occur in the vicinity of and during the duration of the 
activity, and would not generally occur in a frequency range that 
overlaps most odontocete communication or any echolocation signals. The 
required mitigation measures (e.g., use of sound attenuation systems, 
implementation of clearance and shutdown zones) would also minimize 
received levels such that the expected severity of any behavioral 
response would 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 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, 
TTS, or PTS 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 for TTS and masking, and for TTS and PTS, 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.
    The waters off the coast of Massachusetts are used by several

[[Page 75699]]

odontocete species. However, none except the sperm whale are listed 
under the ESA and there are no known habitats of particular importance. 
In general, odontocete habitat ranges are far-reaching along the 
Atlantic coast of the U.S. and the waters off of New England, including 
the LIA, 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 LIA, although Westell et al. (2024) found a high number 
of acoustic detections of sperm whales off the northeastern corner of 
the Lease Area. No mortality or serious injury is anticipated or 
authorized for this species.
    The IHA authorizes up to two takes by Level B harassment over the 
1-year period, which equates to approximately 0.05 percent of the stock 
abundance. If sperm whales are present in the LIA during any Project 
activities, they will likely be only transient visitors, although 
foraging and social behavior may occur in the shallow waters off SNE 
(Westell et al., 2024). However, the potential for TTS is low for 
reasons described in the general Odontocete section. If it does occur, 
any hearing shift would be small and of a short duration. Because 
foraging is expected to be rare in the LIA, TTS is not expected to 
interfere with foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than two takes by Level B harassment over the course 
of the 1-year IHA, and in consideration of the required mitigation and 
other information presented, Vineyard Wind's activities are not 
expected to result in impacts on the reproduction or survival of any 
individuals, much less affect annual rates of recruitment or survival. 
For these reasons, we have determined that the take by Level B 
harassment anticipated and authorized will have a negligible impact on 
the North Atlantic stock of sperm whales.
Dolphins and Small Whales (Including Delphinids)
    The five species and stocks included in this group (which are 
indicated in table 3 in the Delphinidae family) are not listed under 
the ESA, and nor are they listed as depleted or strategic under the 
MMPA. There are no known areas of specific biological importance in or 
around the LIA. As described above for any of these species and no UMEs 
have been designated for any of these species. No serious injury or 
mortality is anticipated or authorized for these species.
    The five delphinid species (constituting five stocks) with takes 
authorized under the IHA are Atlantic white-sided dolphin, bottlenose 
dolphin, long-finned pilot whale, Risso's dolphin, and common dolphin. 
The IHA allows for the total authorization of 3 to 462 takes (depending 
on species) by Level B harassment, over the 1-year period. Overall, 
this annual take equates to approximately 0.01 (Risso's dolphin) up to 
0.27 (common dolphin) percent of the stock abundance (if each take were 
considered to be of a different individual, which is not likely the 
case), depending on the species.
    The number of takes, likely movement patterns of the affected 
species, and the intensity of any Level B harassment, combined with the 
availability of alternate nearby foraging habitat suggests that the 
likely impacts would not impact the reproduction or survival of any 
individuals. While delphinids may be taken on several occasions, none 
of these species are known to have small home ranges within the LIA or 
known to be particularly sensitive to anthropogenic noise. Some TTS can 
occur, but it would be limited to the frequency ranges of the activity 
and any loss of hearing sensitivity is anticipated to return to pre-
exposure conditions shortly after the animals move away from the source 
or the source ceases.
    Across these species, the maximum number of incidental takes, by 
Level B harassment (no Level A harassment is anticipated or 
authorized), authorized ranges between 3 (Risso's dolphin) to 462 
(common dolphin). Though the estimated numbers of take are 
comparatively higher than the numbers for mysticetes, we note that for 
all species they are low relative to the population abundance.
    As described above for odontocetes broadly, given the number of 
estimated takes for some species and the behavioral patterns of 
odontocetes, we anticipate that some 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 across a few days 
within the year is likely, the intensity of any Level B harassment 
combined with the availability of alternate nearby foraging habitat 
suggests that the likely impacts would not impact the reproduction or 
survival of any individuals.
    Overall, the populations of all delphinid and small whale species 
and stocks authorized for take are stable (no declining population 
trends). None of these stocks are experiencing existing UMEs. No 
mortality, serious injury, or Level A harassment is anticipated or 
authorized for any of these species. Given the magnitude and severity 
of the impacts discussed above and in consideration of the required 
mitigation and other information presented, as well as the status of 
these stocks, the specified activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by harassment anticipated and authorized 
will have a negligible impact on all of the following species and 
stocks: Atlantic white-sided dolphins, bottlenose dolphins, long-finned 
pilot whales, Risso's dolphins, and common dolphins.
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 depleted 
nor strategic under the MMPA. The stock is found predominantly in 
northern U.S. coastal waters (less than 150 m depth) and up into 
Canada's Bay of Fundy (between New Brunswick and Nova Scotia). Although 
the population trend is not known, there are no UMEs or other factors 
that cause particular concern for this stock. No mortality or non-
auditory injury are anticipated or authorized for this stock.
    The IHA authorizes up to 113 takes, by harassment only. The maximum 
allowable take by Level A harassment and Level B harassment is 3 and 
110, respectively (combined, this annual take (n=113), which equates to 
approximately 0.19 percent of the stock

[[Page 75700]]

abundance, if each take were considered to be of a different 
individual). Given the number of takes, while many of the takes likely 
represent exposures of different individuals on 1 day a year, some 
subset of the individuals exposed could be taken up to a few times 
annually.
    Regarding the severity of takes by Level A harassment and Level B 
harassment, because harbor porpoises are particularly sensitive to 
noise, it is likely that a fair number of the responses to foundation 
installation could be of a moderate nature. In response to foundation 
installation, 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 Hayes et al. (2022), harbor porpoises are 
seasonally distributed. During fall (October through November) and 
spring (April through June), harbor porpoises are widely dispersed from 
New Jersey to Maine with lower densities farther north and south. 
During winter (January to March), intermediate densities of harbor 
porpoises can be found in waters off New Jersey to North Carolina and 
lower densities are found in waters off New York to New Brunswick, 
Canada. In non-summer months they have been seen from the coastline to 
deep waters (<1800 m; Westgate et al., 1998), although the majority are 
found over the continental shelf. While harbor porpoises are likely to 
avoid the area during any of the project's construction activities, as 
demonstrated during European wind farm construction, the time of year 
in which most work would occur is when harbor porpoises are not in 
highest abundance, and any work that does occur would not result in the 
species' abandonment of the waters off of 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 or authorized 
will have a negligible impact on the Gulf of Maine/Bay of Fundy stock 
of harbor porpoises.

Phocids (Harbor Seals and Gray Seals)

    The harbor seal and gray seal are not listed under the ESA, and 
neither the western North Atlantic stock of gray seal nor the western 
North Atlantic stock of harbor seal are considered depleted or 
strategic under the MMPA. There are no known areas of specific 
biological importance in or around the LIA. As described in the 
Description of Marine Mammals in the Area of Specified Activities 
section, a UME has been designated for harbor seals and gray seals and 
is described further below. No serious injury or mortality is 
anticipated or authorized for this species.
    For the 2 seal species, the IHA authorizes up to between 30 (harbor 
seals) and 241 (gray seals) takes, by harassment only. The maximum 
allowable take for harbor seals by Level A harassment and Level B 
harassment is 1 and 29, respectively (combined, this take (n=30) 
equates to approximately 0.05 percent of the stock abundance, if each 
take were considered to be of a different individual). No takes by 
Level A harassment are anticipated or authorized for gray seals. The 
maximum allowable take for gray seals by Level B harassment (241) 
equates to approximately 0.88 percent of the stock abundance, if each 
take were considered to be of a different individual). Though gray 
seals and harbor seals are considered migratory and no specific feeding 
areas have been defined for the area, 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 a few 
times annually.
    Harbor and gray seals occur in southern New England waters most 
often from December through April. Seals are more likely to be close to 
shore, such that exposure to foundation installation would be expected 
to be at low levels. Known haulouts for seals occur along the shores of 
Massachusetts.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section, construction of wind farms in Europe resulted in 
pinnipeds temporarily avoiding construction areas but returning within 
short time frames after construction was complete (Carroll et al., 
2010; Hamre et al., 2011; Hastie et al., 2015; Russell et al., 2016; 
Brasseur et al., 2012). Effects on pinnipeds that are taken by Level B 
harassment in the LIA would likely be limited to avoidance of the area 
reactions such as increased swimming speeds, increased surfacing time, 
or decreased foraging (if such activity were occurring). Most likely, 
individuals would simply move away from the sound source and be 
temporarily displaced from those areas (Lucke et al., 2006; Edren et 
al., 2010; Skeate et al., 2012; Russell et al., 2016). Given the low 
anticipated magnitude of impacts from any given exposure (e.g., 
temporary avoidance), even repeated Level B harassment across a few 
days of some small subset of individuals, which could occur, is 
unlikely to result in impacts on the reproduction or survival of any 
individuals. Moreover, pinnipeds would benefit from the mitigation 
measures described in the Mitigation section.
    As described above, noise from pile driving is mainly low 
frequency, and while any PTS and TTS that does occur would fall within 
the lower end of pinniped hearing ranges (50 Hz to 86 kHz), PTS and TTS 
would not occur at frequencies around 5 kHz where pinniped hearing is 
most susceptible to noise-induced hearing loss (Kastelein et al., 
2018). In summary, any PTS and TTS would be of small degree and not 
occur across the entire, or even most sensitive, hearing range. Hence, 
any impacts from PTS and TTS are likely to be of low severity and not 
interfere with behaviors critical to reproduction or survival.
    Regarding the previously mentioned UMEs, elevated numbers of harbor 
seal and gray seal mortalities were first observed in July 2018 and 
occurred across Maine, New Hampshire, and Massachusetts until 2020. 
Based on tests conducted so far, the main pathogen found in the seals 
belonging to that UME was phocine distemper virus, although additional 
testing to identify other factors that may be involved in this UME are 
underway. In 2022, a pinniped UME occurred in Maine with some harbor 
and gray seals testing

[[Page 75701]]

positive for highly pathogenic avian influenza (HPAI) H5N1. Neither UME 
(alone or in combination) provides cause for concern regarding 
population-level impacts to any of these stocks. For harbor seals, the 
population abundance is over 61,000 and annual mortality/serious injury 
(M/SI) (n=339) is well below PBR (1,729) (Hayes et al., 2023). 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 (Hayes et al., 2023). In addition, the 
abundance of gray seals is likely increasing in the U.S. Atlantic, as 
well as in Canada (Hayes et al., 2023). Takes by harassment authorized 
incidental to Vineyard Wind 1's activities would not be expected to 
exacerbate or compound the effects of any UME.
    Given the magnitude and severity of the impacts of the Vineyard 
Wind 1 Project discussed above, and in consideration of the required 
mitigation and other information presented, Vineyard Wind's activities 
are not expected to result in impacts on the reproduction or survival 
of any individuals, much less affect annual rates of recruitment or 
survival. For these reasons, we have determined that the take by 
harassment anticipated and authorized will have a negligible impact on 
harbor and gray seals.

Negligible Impact Determination

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

Small Numbers

    As noted previously, only incidental take of small numbers of 
marine mammals may be authorized under sections 101(a)(5)(A) and (D) of 
the MMPA for specified activities other than military readiness 
activities. The MMPA does not define small numbers and so, in practice, 
where estimated numbers are available, NMFS compares the number of 
individuals 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 fewer than one-third of 
the species or stock abundance, the take is considered to be of small 
numbers (86 FR 5322, January 19, 2021). Additionally, other qualitative 
factors may be considered in the analysis, such as the temporal or 
spatial scale of the activities.
    NMFS is authorizing incidental take by Level A harassment and/or 
Level B harassment of 14 species of marine mammals (with 14 managed 
stocks). The estimated number of instances of takes by combined Level A 
harassment and Level B harassment relative to the best available 
population abundance is less than one-third for all affected species 
and stocks (table 1). For 13 stocks, 1 percent or less of the stock 
abundance is authorized for take by harassment. Specific to the North 
Atlantic right whale, the estimated amount of take, which is by Level B 
harassment only (no Level A harassment is anticipated or authorized), 
is seven, or 2.07 percent of the stock abundance, assuming that each 
instance of take represents a different individual.
    Based on the analysis contained herein of the planned activity 
(including the 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.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure 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 issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with NOAA GARFO.
    There are four marine mammal species under NMFS jurisdiction that 
are listed as endangered or threatened under the ESA that may taken, by 
harassment, incidental to construction of the project: the North 
Atlantic right, sei, fin, and sperm whale. NMFS issued a Biological 
Opinion on September 11, 2020 and reissued the Biological Opinion on 
October 18, 2021, concluding that the issuance of the 2023 Vineyard 
Wind IHA is not likely to jeopardize the continued existence of 
threatened and endangered species under NMFS' jurisdiction and is not 
likely to result in the destruction or adverse modification of 
designated or proposed critical habitat. The Biological Opinion is 
available at https://repository.library.noaa.gov/view/noaa/37556.
    The Permit and Conservation Division requested re-initiation of 
section 7 consultation with GARFO on the issuance of the Vineyard Wind 
1 proposed IHA for Phase 2 of the Vineyard Wind 1 Offshore Wind Project 
on May 23, 2024. Reinitiation of consultation was triggered due to 
consideration of updated marine mammal density data which have become 
available since the 2023 IHA, analysis of SFV data collected during the 
Vineyard Wind 1 2023 construction campaign, and modified mitigation and 
monitoring measures. On August 2, 2024, NMFS GARFO issued a Biological 
Opinion that considered the effects of the remaining activities for the 
Vineyard Wind 1 Offshore Wind Project, including NMFS Permit and 
Conservation Division's proposed issuance of an IHA authorizing 
incidental take of four species of ESA-listed marine mammals, taking 
into account the reinitiation triggers listed above. NMFS GARFO 
concluded that the proposed actions were likely to adversely affect but 
were not likely to jeopardize the continued existence of the North 
Atlantic right whale, fin whale, sei whale, or sperm whale.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969, as 
amended (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order 
(NAO) 216-6A, NMFS must review its proposed action (i.e., the issuance 
of an IHA) with respect to potential impacts to marine mammals in the 
human environment. Consistent with the regulations published by the 
Council on Environmental Quality (CEQ) (40 CFR

[[Page 75702]]

1506.3(b)), NMFS as a cooperating agency, independently reviewed BOEM's 
2021 Vineyard Wind 1 Offshore Wind Energy Project Final Environmental 
Impact Statement (EIS) and determined it to be sufficient to support 
the 2023 IHA. The Final EIS and Record of Decision are available at 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind.
    NMFS evaluated the subject IHA to Vineyard Wind 1, for completion 
of the foundation installation that was unable to be completed during 
the previous IHA (May 1, 2023 through April 30, 2024), to determine 
whether supplementation of the Final EIS was required. NMFS determined 
that changes reflected in this IHA are not substantial relevant to 
environmental concerns; and there are no substantial new circumstances 
or information about the significance of adverse effects that bear on 
the analysis in BOEM's 2021 Final EIS. Therefore, supplementation of 
the Vineyard Wind 1 Final EIS is not required for this subsequent IHA 
(40 CFR 1502.9(d)(1)).

Authorization

    NMFS has issued an IHA to Vineyard Wind 1 for harassment of small 
numbers of 14 marine mammal species incidental to impact pile driving 
of monopiles during the construction of the Vineyard Wind 1 Offshore 
Wind Farm Phase 2 offshore of Massachusetts, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: September 6, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-20541 Filed 9-13-24; 8:45 am]
BILLING CODE 3510-22-P