Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Maryland Offshore Wind Project, Offshore of Maryland, 84674-84729 [2024-22601]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 205 (Wednesday, October 23, 2024)]
[Rules and Regulations]
[Pages 84674-84729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22601]



[[Page 84673]]

Vol. 89

Wednesday,

No. 205

October 23, 2024

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





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

Federal Register / Vol. 89 , No. 205 / Wednesday, October 23, 2024 / 
Rules and Regulations

[[Page 84674]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240917-0242]
RIN 0648-BM32


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Maryland Offshore Wind Project, 
Offshore of Maryland

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

ACTION: Final rule.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS promulgates regulations to govern the incidental taking of 
marine mammals incidental to US Wind, Inc. (US Wind) during the 
construction of an offshore wind energy project (the Project) in 
Federal and State waters off of Maryland, specifically within the 
Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged 
Lands for Renewable Energy Development on the Outer Continental Shelf 
(OCS) Lease Area (OCS-A-0490) (referred to as the Lease Area) and along 
associated export cable routes to sea-to-shore transition points 
(collectively, the project area), over the course of 5 years (January 
1, 2025 through December 31, 2029). These regulations, which allow for 
the issuance of a Letter of Authorization (LOA) for the incidental take 
of marine mammals during specific construction related activities 
within the project area during the effective dates of the regulations, 
prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, as well as requirements pertaining to the 
monitoring and reporting of such taking.

DATES: This rule is effective from January 1, 2025, through December 
31, 2029.

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

SUPPLEMENTARY INFORMATION: 

Availability

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

Purpose and Need for Regulatory Action

    This final rule, as promulgated, provides a framework under the 
authority of the MMPA (16 U.S.C. 1361 et seq.) to authorize the take of 
marine mammals incidental to construction of the Project within the 
project area. NMFS received a request from US Wind to incidentally take 
a small number of marine mammals from 19 species of marine mammals, 
comprising 20 stocks (5 stocks by Level A harassment and Level B 
harassment; 15 stocks by Level B harassment only), incidental to US 
Wind's construction activities. US Wind did not request and NMFS 
neither anticipates nor allows take by serious injury or mortality 
incidental to the specified activities in this final rulemaking.

Legal Authority for the Final Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated (when applicable), and public notice and an opportunity for 
public comment are provided.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). 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 as ``mitigation''); 
and requirements pertaining to the mitigation, monitoring and reporting 
of the takings are set forth.
    As noted above, US Wind did not request and NMFS neither 
anticipates nor allows take by serious injury or mortality incidental 
to the specified activities in this final rulemaking. Relevant 
definitions of MMPA statutory and regulatory terms are included below:
     U.S. Citizens--individual U.S. citizens or any corporation 
or similar entity if it is organized under the laws of the United 
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 
216.103);
     Take--to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362; 50 
CFR 216.3);
     Incidental Harassment, Incidental Taking and Incidental, 
but not Intentional, Taking--an accidental taking. This does not mean 
that the taking is unexpected, but rather it includes those takings 
that are infrequent, unavoidable or accidental (see 50 CFR 216.103);
     Serious Injury--any injury that will likely result in 
mortality (50 CFR 216.3);
     Level A harassment--any act of pursuit, torment, or 
annoyance which has the potential to injure a marine mammal or marine 
mammal stock in the wild (16 U.S.C. 1362; 50 CFR 216.3); and
     Level B harassment--any act of pursuit, torment, or 
annoyance which has the potential to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (16 U.S.C. 1362; 50 CFR 216.3).
    Section 101(a)(5)(A) of the MMPA and the implementing regulations 
at 50 CFR part 216, subpart I provide the legal basis for proposing 
and, if appropriate, issuing this rule containing 5-year regulations 
and associated LOA. This final rule also establishes required 
mitigation, monitoring, and reporting requirements for US Wind's 
construction activities.

Summary of Major Provisions Within the Final Rule

    The major provisions within this final rule include:
     Allowing NMFS to authorize, under a LOA, the take of small 
numbers of marine mammals by Level A harassment and/or Level B 
harassment (50 CFR 217.312) incidental to the Project and prohibiting 
take of such species or stocks in any manner not permitted (50 CFR 
217.313) (e.g., mortality or serious injury);
     Establishing a seasonal moratorium on foundation impact 
pile driving

[[Page 84675]]

during December 1-April 30, annually, as well as avoiding foundation 
impact pile driving in November to the maximum extent practicable to 
minimize impacts to North Atlantic right whales (Eubalaena glacialis);
     Conducting both visual and passive acoustic monitoring 
(PAM) by trained, NMFS-approved Protected Species Observers (PSO) and 
PAM operators before, during, and after select in-water construction 
activities;
     Requiring training for all Project personnel to ensure 
marine mammal protocols and procedures are clearly understood;
     Establishing clearance and shutdown zones for all in-water 
construction activities and high-resolution geophysical (HRG) marine 
site characterization surveys to prevent or reduce the risk of Level A 
harassment and to minimize the risk of Level B harassment, including a 
delay or shutdown of foundation impact pile driving if a North Atlantic 
right whale is observed at any distance by PSOs or acoustically 
detected within certain distances;
     Establishing minimum visibility and PAM monitoring zones 
during foundation impact pile driving;
     Requiring use of at least two sound attenuation devices 
during all foundation impact pile driving installation activities to 
reduce noise levels to those modeled assuming a broadband 10 decibel 
(dB) attenuation;
     Requiring sound field verification (SFV) monitoring during 
impact pile driving of foundation piles to measure in situ noise levels 
for comparison against the modeled results and ensure noise levels 
assuming 10 dB attenuation are not exceeded;
     Requiring SFV during the operational phase of the Project;
     Implementing soft-starts during impact pile driving and 
ramp-up during the use of HRG marine site characterization survey 
equipment;
     Requiring various vessel strike avoidance measures;
     Requiring various measures during fisheries monitoring 
surveys, such as removing gear from the water if marine mammals are 
considered at-risk or are interacting with gear;
     Requiring regular and situational reporting including, but 
not limited to, information regarding activities occurring, marine 
mammal observations and acoustic detections, and SFV monitoring 
results; and
     Requiring monitoring of the North Atlantic right whale 
sighting networks, Channel 16, and PAM data, as well as reporting any 
sightings to the NMFS.
    Through adaptive management (see 50 CFR 217.347(c)(1)) NMFS Office 
of Protected Resources may modify (e.g., remove, revise, or add to) the 
existing mitigation, monitoring, or reporting measures summarized above 
and required by the LOA.
    NMFS must withdraw or suspend an LOA issued under these 
regulations, after notice and opportunity for public comment, if it 
finds the methods of taking or the mitigation, monitoring, or reporting 
measures are not being substantially complied with (16 U.S.C. 
1371(a)(5)(B); 50 CFR 216.106(e)). Additionally, failure to comply with 
the requirements of the LOA may result in civil monetary penalties and 
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 
CFR 216.106(g)).

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

    This Project is covered under title 41 of the Fixing America's 
Surface Transportation Act, or ``FAST-41.'' A ``covered project'' under 
FAST-41 is defined generally as ``any activity in the United States 
that requires authorization or environmental review by a Federal agency 
involving construction of infrastructure for renewable or conventional 
energy production'' 42 U.S.C. 4370m-(6)(A). The Project, which involves 
construction of renewable wind energy infrastructure off of Maryland, 
will provide 300 megawatts (MW) of energy and, upon completion, advance 
the State of Maryland's renewable energy goals. As such, the Project 
falls under FAST-41's definition of ``covered project.''
    FAST-41 includes a suite of provisions designed to expedite the 
environmental review for covered infrastructure projects, including 
enhanced interagency coordination as well as milestone tracking on the 
public-facing Permitting Dashboard. FAST-41 also places a 2-year 
limitations period on any judicial claim that challenges the validity 
of a Federal agency decision to issue or deny an authorization for a 
FAST-41 covered project 42 U.S.C. 4370m-6(a)(1)(A).
    The Project is listed on the Permitting Dashboard, where milestones 
and schedules related to the environmental review and permitting for 
the Project can be found at https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/maryland-offshore-wind-project.

Summary of Request

    On August 31, 2022, US Wind submitted a request for the 
promulgation of regulations and issuance of an associated 5-year LOA to 
take marine mammals incidental to construction activities associated 
with implementation of the Project offshore of Maryland in the BOEM 
Lease Area OCS-A 0490 and associated export cable routes. US Wind's 
request is for the incidental, but not intentional, taking of a small 
number of 19 marine mammal species (comprising 20 stocks) by Level B 
harassment (for all 20 stocks) and by Level A harassment (for 5 of the 
20 stocks). US Wind did not request, and NMFS does not anticipate, take 
by serious injury or mortality to occur for any marine mammal species 
or stock incidental to the specified activities.
    In response to our questions and comments and following extensive 
information exchanges between US Wind and NMFS, US Wind submitted a 
final, revised application on March 31, 2023 that NMFS deemed adequate 
and complete on April 3, 2023. This application is available on NMFS' 
website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
    On May 2, 2023, NMFS published a notice of receipt (NOR) of US 
Wind's adequate and complete application in the Federal Register (88 FR 
27463), requesting comments and soliciting information related to US 
Wind's request during a 30-day public comment period. During the NOR 
public comment period, NMFS received comment letters from 77 private 
citizens, 6 non-governmental organizations, and 1 State government 
organization (Delaware Department of Natural Resources and 
Environmental Control). NMFS reviewed all submitted material and took 
these into consideration during the drafting of the proposed rule.
    On September 6, 2023 and September 11, 2023, US Wind submitted 
supplemental information related to its pilot whale and seal take 
analyses. The corresponding memos, entitled ``US Wind NMFS Request for 
Information (RFI) Response Memo and Maryland Offshore Wind Project 
Revised Requested Take Tables'' are available on our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.
    On January 4, 2024, NMFS published the proposed rule for the 
Project in the Federal Register (89 FR 504). In the proposed rule, NMFS 
synthesized all of the information provided by US Wind, all best 
available scientific information and literature relevant to the 
Project, outlined, in detail, proposed mitigation designed to effect 
the least practicable

[[Page 84676]]

adverse impacts on marine mammal species and stocks as well as proposed 
monitoring and reporting measures, and made preliminary negligible 
impact and small numbers determinations. The public comment period on 
the proposed rule was open for 30 days from January 4, 2024 through 
February 5, 2024 on https://Regulations.gov. A summary of public 
comments received during this 30-day period are described in the 
Comments and Responses section; full public comments may be viewed on 
https://Regulations.gov.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations (87 FR 46921) to 
further reduce the likelihood of mortalities and serious injuries to 
endangered right whales from vessel collisions, which are a leading 
cause of the species' decline and a primary factor in an ongoing 
Unusual Mortality Event (UME). Should a final vessel speed rule be 
issued and become effective during the effective period of this 
incidental take authorization (or any other MMPA incidental take 
authorization), the authorization holder would be required to comply 
with any and all applicable requirements contained within the final 
rule. Specifically, where measures in any final vessel speed rule are 
more protective or restrictive than those in this or any other MMPA 
authorization, authorization holders would be required to comply with 
the requirements of the rule. Alternatively, where measures in this or 
any other MMPA authorization are more restrictive or protective than 
those in any final vessel speed rule, the measures in the MMPA 
authorization would remain in place. The responsibility to comply with 
the applicable requirements of any vessel speed rule would become 
effective immediately upon the effective date of any final vessel speed 
rule and when notice is published on the effective date, NMFS would 
also notify US Wind if the measures in the speed rule were to supersede 
any of the measures in the MMPA authorization such that they were no 
longer required.

Description of Specified Activity

Overview

    US Wind plans to construct and operate a wind energy facility, the 
Project, in the Atlantic Ocean in lease area OCS-A 0490, offshore 
Maryland. The Project consists of 3 construction campaigns including 
MarWin, located in the southeastern portion of the Lease Area with the 
potential to generate approximately 300 megawatts (MW) of energy, 
Momentum Wind, located immediately west of MarWin with the potential to 
generate approximately 808 MW of energy, and Future Development, which 
encompasses buildout of the remainder of the Lease Area and for which 
generation capacity has yet to be determined (table 1). Once 
operational, MarWin and Momentum Wind would advance the State of 
Maryland's renewable energy goals, providing 50 percent of the State's 
goal by the year 2030, with the full buildout of the Lease Area further 
achieving renewable energy targets. US Wind also anticipates completing 
the Future Development campaign within the effective period of the 
rule.
    The Project will consist of several different types of permanent 
offshore infrastructure, including up to 114 WTGs (e.g., 18-MW model 
with a 250-meter (m) rotor diameter platform), four OSSs, a MET tower, 
and inter-array and export cables. MarWin will occupy approximately 
46.6 square kilometers (km\2\) (11,515 acres), which will include 
approximately 21 WTGs and 1 OSS. The MarWin campaign, as well as 
subsequent Momentum Wind and Future Development, includes monopiles as 
the only potential WTG foundation type. For each campaign, the OSS 
would be supported by monopiles or jacket foundations with skirt piles. 
Skirt piles are post-piled pin piles. Jacket foundations are placed on 
the seabed and pin piles are driven into jacket pile guides, which are 
known as skirts. Table 1 provides a summary of each construction 
campaign.

                                              Table 1--US Wind's Anticipated Construction Campaign Schedule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Number of 11-m                                Number of 1.8-
                Campaigns                   Construction    monopiles for   Number 3-m pin piles for OSS    m pin piles   Onshore export     Offshore
                                                year             WTGs          jacket foundations \1\      for Met tower      cables        substations
--------------------------------------------------------------------------------------------------------------------------------------------------------
MarWin...................................        1 (2025)               21  4 (1 jacket)................               0               4               1
Momentum.................................        2 (2026)               55  8 (2 jackets)...............               3               0               2
Future Development.......................        3 (2027)               38  4 (1 jacket)................               0               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Potential OSS foundations could also include monopile and suction bucket jacket foundations.

    Strings of WTGs will connect with the OSS via a submarine inter-
array cable transmission system. Up to four high-voltage alternating 
current (HVAC) offshore export cables will be installed during the 
MarWin campaign, spanning approximately 65-97 (kilometers) km (40-60 
miles (mi)) in length, dependent on the location of the OSS and the 
final routing. The Export Cable Corridor (ECC) will transmit 
electricity from the OSS to one or two landfall sites in Delaware 
Seashore State Park.
    The second construction campaign, Momentum Wind, will contain 
approximately 55 WTGs, 2 OSSs, and 1 MET tower within an area of 
approximately 142.4 km\2\ (35,188 acres). The Met tower will be 
supported by pin pile foundations. During the third construction 
campaign, Future Development, approximately 38 WTGs and 1 OSS will be 
installed within an area of approximately 80.3 km\2\ (19,843 acres).
    US Wind plans to install all monopile or pin pile foundations via 
impact pile driving. If suction bucket foundations are selected for OSS 
jacket foundations, impact pile driving would not be necessary. US Wind 
will also conduct the following supporting activities: temporarily 
install and subsequently remove gravity cells to connect the offshore 
export cables to onshore facilities; permanently install scour 
protection around all foundations; permanently install and perform 
trenching, laying, and burial activities associated with the export 
cables from the OSSs to shore-based switching and sub-stations and WTG 
inter-array cables; and, during years 2 and 3, perform HRG surveys 
using active acoustic sources with frequencies of less than 180 
kilohertz (kHz). To transport crew, supplies, and materials to support 
construction activities, vessels will transit within the Lease Area, 
along cable corridors, and between the project area and anticipated 
ports (Port Norris, NJ; Lewes, DE; Ocean City, MD; Baltimore, MD; 
Hampton Roads, VA; and Cape Charles, VA).
    Up to four offshore export cables will be located among up to two 
corridors from the OSSs and connect to the planned landfall at either 
3R's Beach or Tower Road within Delaware Seashore State Park. When the 
cables reach the

[[Page 84677]]

landfall site, they will be pulled into a cable duct generated by 
horizontal directional drilling (HDD), which will route the cables 
under the existing beach to subterranean transition vaults. All 
offshore cables will be connected to onshore export cables at the sea-
to-shore transition point via trenchless installation (i.e., 
underground tunneling utilizing micro tunnel boring installation 
methodologies).
    Fishery monitoring surveys, performed via recreational boat-based 
surveys and a pot-based monitoring approach using ropeless gear 
technology, will be conducted in conjunction with the University of 
Maryland Center for Environmental Science (UMCES) to enhance existing 
data for specific benthic and pelagic species of concern.

Dates and Duration

    As described above, US Wind will conduct 3 campaigns over 3 years: 
MarWin, Momentum Wind, and Future Development (table 1). Based on US 
Wind's planned schedule, the installation of all permanent structures 
will be completed by the end of November 2027. More specifically, US 
Wind will install piles only between May 1 and November 30. Also, the 
installation of WTG foundations and OSS 3-m pin pile jacket foundations 
will occur during daylight hours between May 1 and November 30 of 2025, 
2026, and 2027 (table 2); however, NMFS would allow nighttime pile 
driving if US Wind submits, and NMFS approves, an Alternative 
Monitoring Plan, as discussed below. The single Met tower foundation 
will be installed in 2026 (table 2). US Wind anticipates HRG surveys 
using sparkers and boomers to occur during 2026 and 2027. Up to 14 days 
of HRG survey activity are planned from April through June 2026 during 
the Momentum campaign. In addition, up to 14 days of HRG survey 
activity are planned from April through June 2027 during the Future 
Development campaign. Currently, US Wind is not planning to conduct 
activities that have the potential to result in take in 2028 and 2029. 
However, while table 2 represents US Wind's current schedule, NMFS 
recognizes the potential for activity schedules to shift such that they 
could occur during different timeframes within the five year effective 
period of this rule.

 Table 2--US Wind's Anticipated Construction and Operations Schedule During the Effective Period of the LOA \1\
----------------------------------------------------------------------------------------------------------------
                                                                                              Expected duration
         Project activity                 Construction campaign         Expected timing \2\     (approximate)
----------------------------------------------------------------------------------------------------------------
Scour Protection Pre-Installation  MarWin.............................  Year 1: Q2 through   21 days.
                                                                         Q3 of 2025.
                                   Momentum Wind......................  Year 2: Q2 through   55 days.
                                                                         Q3 of 2026.
                                   Future Development.................  Year 3: Q2 through   38 days.
                                                                         Q3 of 2027.
WTG Foundation Installation \3\    MarWin.............................  Year 1: June         21 days.
 \5\.                                                                    through September
                                                                         of 2025.
                                   Momentum Wind......................  Year 2: May through  55 days.
                                                                         August of 2026.
                                   Future Development.................  Year 3: June         38 days.
                                                                         through August of
                                                                         2027.
Scour protection post-             MarWin.............................  Year 1: Q2 through   42 days.
 installation.                                                           Q3 of 2025.
                                   Momentum Wind......................  Year 2: Q2 through   110 days.
                                                                         Q3 of 2026.
                                   Future Development.................  Year 3: Q2 through   76 days.
                                                                         Q3 of 2027.
OSS Foundation installation \3\    MarWin.............................  Year 1: July of      1 day.
 \5\.                                                                    2025.
                                   Momentum Wind......................  Year 2: July of      2 days.
                                                                         2026.
                                   Future Development.................  Year 3: July of      1 day.
                                                                         2027.
Met Tower installation \3\ \4\...  Momentum Wind......................  Year 2: June of      1 day.
                                                                         2026.
HRG surveys \5\..................  Momentum Wind......................  Year 2: Q2 through   14 days.
                                                                         Q3 of 2026.
                                   Future Development.................  Year 3: Q2 through   14 days.
                                                                         Q3 of 2027.
Site preparation.................  n/a................................  Not anticipated....  n/a.
Inter-array cable installation...  MarWin.............................  Year 1: Q2 through   42 days.
                                                                         Q4 of 2025.
                                   Momentum Wind......................  Year 2: Q2 through   110 days.
                                                                         Q4 of 2026.
                                   Future Development.................  Year 3: Q2 through   76 days.
                                                                         Q4 of 2027.
Export cable installation........  MarWin.............................  Year 1: Q1 through   60 days.
                                                                         Q4 of 2025.
                                   Momentum Wind......................  Year 2: Q1 through   120 days (2
                                                                         Q4 of 2026.          cables).
                                   Future Development.................  Year 3: Q1 through   60 days.
                                                                         Q4 of 2027.
Fishery monitoring surveys.......  MarWin.............................  Q1 through Q4 Years  16 days/year for
                                   Momentum Wind......................   1-5.                 commercial pot
                                   Future Development.................                        surveys.
                                                                                             12 days/year for
                                                                                              recreational
                                                                                              surveys.
----------------------------------------------------------------------------------------------------------------
\1\ Currently, US Wind is not planning to conduct activities that have the potential to result in take in 2028
  and 2029. However, while table 2 represents US Wind's current schedule, NMFS recognizes the potential for
  activity schedules to shift such that they could occur during different timeframes within the five year
  effective period of this rule.
\2\ Installation timing will depend on vessel availability, contractor selection, weather, and more. Year 1 is
  anticipated to be 2025, year 2 to be 2026, and year 3 to be 2027, although these are subject to change per the
  factors identified. Note: ``Q1, Q2, Q3, and Q4'' each refer to a quarter of the year, starting in January and
  comprising 3 months each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3
  represents July through September, and Q4 represents October through December.
\3\ The months identified here represent US Wind's planned schedule; however, in case of unanticipated delays,
  foundation installation may occur between May 1 and November 30 annually.
\4\ US Wind anticipates that all WTGs, OSS, and Met tower foundations will be installed by November 30, 2027;
  however, unanticipated delays may require some foundation pile driving to occur in years 4 (2028) or 5 (2029).
\5\ Represents HRG surveys that may result in take of marine mammals. US Wind plans to conduct HRG surveys that
  are not expected to result in take of marine mammals during Q2 through Q3 of year 1 given those surveys would
  utilize equipment all operating over 180kHz or have no acoustic output.

Specified Geographic Region

    A detailed description of the Specific Geographic Region, 
identified as the Mid-Atlantic Bight, is provided in the proposed rule 
(89 FR 504, January 4, 2024). Since the proposed rule was published, no 
changes have been made to the Specified Geographic Region. Generally, 
US Wind's specified activities (i.e., impact pile driving of monopile 
and jacket foundations; placement of scour protection; trenching, 
laying, and burial activities associated with the installation of the 
ECRs and inter-array cables; HRG site characterization surveys; and WTG 
operation) are concentrated in the Lease Area and ECRs offshore of 
Maryland. However, vessel transit from ports as far south as Virginia 
and as far north as New Jersey are anticipated.
BILLING CODE 3510-22-P

[[Page 84678]]

[GRAPHIC] [TIFF OMITTED] TR23OC24.000

BILLING CODE 3510-22-C

Comments and Responses

    NMFS published a proposed rule in the Federal Register on January 
4, 2024 (89 FR 504) for a 30-day public comment period. The proposed 
rule described, in detail, US Wind's specified activities, the specific 
geographic region of the specified activities, the marine mammal 
species that may be affected by those activities, and the anticipated 
effects on marine mammals. In the proposed rule, we requested that 
interested persons submit relevant information, suggestions, and 
comments on US Wind's request for the promulgation of regulations and 
issuance of an associated LOA described therein, our estimated take 
analyses, the preliminary determinations, and the proposed regulations.
    NMFS received 114 comment submissions, including from the Marine 
Mammal Commission (Commission), Delaware Department of Natural 
Resources (DDNC), Town of Fenwick Island, several non-governmental 
organizations, and individual citizens, all of which are available for 
review on www.regulations.gov. Most of these comments were out-of-scope 
or not applicable to the Project (e.g., general opposition to or 
support of offshore wind projects; concerns for other species outside 
NMFS' jurisdiction (e.g., birds and horseshoe crabs) methods for 
conducting site condition identification, support for the proposed rule 
and the Project, concern for energy distribution and power from the 
Project, beach erosion and flooding, critique of the Maryland offshore 
wind congressional hearing held in January 2024), and are not described 
herein or discussed further. Non-governmental organizations included: 
Caesar Rodney Institute (CRI), Town of Fenwick Island (TFI), Wrecker 
Sportfishing, Deep Sea Defenders, and Tower Shore Beach Association. We 
have responded to all comments that contained substantive information 
and considered that information in this final rule, including comments 
related to the estimated take analysis, final determinations, and final 
mitigation, monitoring, and reporting requirements. A summary of 
comments is described below, along with NMFS' responses.

Modeling and Take Estimates

    Comment 1: The Commission notes that, based upon SFV reports,

[[Page 84679]]

discrepancies exist between modeled and measured Level A harassment and 
Level B harassment zones. The Commission indicates that these 
discrepancies may be related to actual installation conditions and 
should be accounted for in the estimation of harassment zones, 
authorized number of takes, and mitigation, monitoring, and reporting 
requirements for the Maryland Wind Offshore Wind Project. The 
Commission recommends that NMFS provide the interim and/or final SFV 
reports for South Fork and Vineyard Wind 1 and allow for another 30-day 
public comment period for the Maryland Wind proposed rule before 
issuing a final rule.
    Response: Based on the discussion below and given our consideration 
of the best available scientific information, including available sound 
field verification (SFV) reports from other offshore wind construction 
projects in the United States, we disagree with the suggestions made by 
the Commission. The Commission has expressed concerns about the lack of 
validation of source models in previous Commission letters. Since the 
proposed rule was published, NMFS has received interim/final sound 
field verification reports from the South Fork Wind project. In all but 
one case, the measured distances to NMFS' Level B harassment threshold 
were lower than the model predicted. The distance to NMFS' Level B 
harassment threshold for the South Fork project was modeled as 4.68 
kilometers (km) while in-situ measurements identified distances ranging 
from 1.84 km to 3.25 km. MAI's modeling predicts the distances to the 
Level B harassment threshold during installation of the Maryland Wind 
11-m monopiles will be approximately 5.25 km which is less than 1 km 
larger than South Fork's modeled distance. We note that South Fork 
determined that one pile generating noise levels above those predicted 
(the first pile) did so due to a malfunctioning noise attenuation 
system which was quickly rectified and deployed appropriately on all 
future piles.
    Since the public comment period ended on the proposed rule, NMFS 
has also received SFV reports from Vineyard Wind 1. However, due to the 
hammer energy assumption in the model versus what was used in the field 
(i.e., more hammer energy was used than modeled) and other operational 
challenges, it is more challenging to compare the VW measured results 
directly to the modeled results, although the modeled distances to the 
Level A harassment threshold were larger (the largest modeled distance 
to the Level A harassment threshold was for low-frequency cetaceans at 
3.191 km) than distances to the Level A harassment threshold measured 
by SFV. The final SFV report for the 2023 construction of the Vineyard 
Wind 1 Offshore Wind Project is currently posted on our website 
(https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind).
    Importantly, in this final rule, should SFV results reveal noise 
levels are louder than those predicted assuming 10 dB attenuation, NMFS 
is requiring US Wind to implement additional measures to reduce sound 
levels such that they do not exceed those modeled assuming 10 dB. US 
Wind is required to conduct either thorough or abbreviated monitoring 
on all foundation piles installed.
    NMFS has incorporated the best available scientific information 
into this final rule, using recent measurements as well as estimates 
obtained through modeling. In regards to the Commission's comment 
recommending another 30-day comment period for the proposed rule, NMFS 
disagrees with this recommendation and has determined that one 30-day 
comment period for the proposed rule is sufficient under the MMPA. The 
MMPA requires notice and opportunity for public comment. The 30-day 
public comment period for the Maryland Offshore Wind Project proposed 
rule was open to the public from January 4, 2024 through February 5, 
2024. NMFS fulfilled the requirements of the MMPA by providing notice 
in the Federal Register and opportunity for public comment on this 
proposed rule.
    Comment 2: The Caesar Rodney Institute (CRI) notes that NMFS has 
not established a standard version of estimated population abundances 
that should be used when evaluating ITA requests. CRI indicates that 
North Atlantic right whale best population abundance estimates vary 
between projects, ranging from 338 North Atlantic right whales (for the 
proposed Maryland Wind Offshore Wind Project proposed rule (89 FR 504, 
January 4, 2024)) to 346 and 394 North Atlantic right whales (for other 
projects). The CRI recommends that NMFS establish a North Atlantic 
right whale population abundance to be used in all applications, as 
well as a maximum allowed estimated population density for the months 
for which construction would take place.
    Response: The MMPA and its implementing regulations require that 
incidental take regulations be established based on the best available 
information. The dynamic nature of population science dictates that 
rulemakings will not be using the same population numbers from year to 
year. NMFS generally considers the information in the most recent U.S. 
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments Report 
(SAR; Hayes et al., 2023) to be the best available information for a 
particular marine mammal stock because of the MMPA's rigorous SAR 
procedural requirements, which includes peer review by a statutorily 
established Scientific Review Group. Since publication of the proposed 
rule, NMFS has released the draft 2023 Stock Assessment Report 
indicating the North Atlantic right whale population abundance is 
estimated as 340 individuals based on sighting data through December 
31, 2021 (88 FR 5495, January 29, 2024). NMFS has used the most recent 
best available scientific information in the analysis of this final 
rule. This new estimate, which is based on the analysis from Pace et 
al. (2017) and subsequent refinements found in Pace (2021), provides 
the best available, and in this case most recent, estimate, including 
improvements to NMFS' right whale abundance model. NMFS notes this 
estimate aligns with the 2022 North Atlantic right whale Report Card 
(Pettis et al., 2022) estimate (also 340) based on sighting data 
through August 2022 but, as described above, that the SARs are peer 
reviewed by other scientific review groups prior to being finalized and 
published and that the Report Card does not undertake this process. 
Based on this, NMFS has considered all relevant information regarding 
North Atlantic right whales, including the information cited by the 
commenters. However, NMFS has relied on the draft 2023 SAR in this 
final rule as it reflects the best available scientific information.
    We note that this change in abundance estimate does not change the 
estimated take of North Atlantic right whales or authorized take 
numbers, nor affect our ability to make the required findings under the 
MMPA for US Wind's construction activities.
    While NMFS does not require applicants to utilize specific models 
for the purposes of estimating take incidental to offshore wind 
construction activities, we evaluate the models used to support take 
estimates to ensure that they are methodologically sound and 
incorporate the best available science. NMFS does require use of the 
Roberts et al. (2016, 2023) density data and SARs abundance estimates 
for all species, both of which represent the best

[[Page 84680]]

available science regarding marine mammal occurrence.

Mitigation

    Comment 3: Multiple commenters recommend strengthening mitigation 
measures for endangered species to minimize take by Level A harassment, 
specifically indicating that shutdown zones required by the proposed 
rule for fin and sei whales should be expanded to encompass the 
distance to the Level A harassment thresholds. One commenter stated 
that, legally, no take of endangered species by Level A harassment 
should be allowed.
    Response: NMFS agrees with the commenters that take of endangered 
species, such as fin and sei whales, by Level A harassment should be 
minimized. As such, the shutdown zones for fin and sei whales encompass 
the modeled maximum R95percent distance to the Level A 
harassment threshold from the pile driving location, as described in 
the Mitigation section of this final rule. NMFS disagrees that 
additional or modified mitigation measures are necessary to affect the 
least practicable adverse impact on marine mammal species or stocks, 
including those listed under the ESA. This rule allows a limited number 
of Level A harassment takes to be authorized for two ESA-listed species 
(fin whale and sei whale) incidental to foundation impact pile driving 
(table 6). We note these take estimates did not consider mitigation 
measures other than seasonal restrictions and 10 dB of sound 
attenuation. Some mitigation measures in the proposed rule and this 
final rule are centered around North Atlantic right whales because of 
the species status and general fitness of individuals.
    If clearance and shutdown zones were increased for fin and sei 
whales, it would likely further lengthen 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). Southall et al. (2021) 
modeled multiple scenarios with different total construction season 
lengths and the results suggest that generally shorter construction 
periods are associated with lower risk, which aligns with the concept 
that more days of noise exposure and disturbance are associated with 
greater impacts. Accordingly, NMFS has determined that the current 
clearance and shutdown zones, together with other mitigation measures, 
affect the least practicable adverse impact on marine mammals. Lastly, 
regarding the comment that no Level A harassment of ESA-listed species 
should be authorized--the MMPA mandates that NMFS shall authorize the 
take of marine mammals, provided the required findings are made. As 
required, NMFS has determined that the Level A and Level B harassment 
allowed under this rule will have a negligible impact on all marine 
mammal species and stocks and that the required measures affect the 
least practicable adverse impact on marine mammal species or stocks.
    Comment 4: A commenter suggests that it should be clearly stated in 
the proposed rule that US Wind should be responsible for prompt 
veterinary care, rehabilitation, and/or handling of any mortally 
wounded marine mammals incidentally taken during the proposed 
activities.
    Response: No serious injury or mortality is anticipated or 
authorized for US Wind's planned activities. In the event of sighting 
any injured marine mammals, US Wind would be required to follow 
reporting measures as described in the Reporting section and 
217.345(f)(15)(iv), which include contacting the regional stranding 
hotline. Further, it would not be appropriate to require US Wind to be 
responsible for veterinary care, rehabilitation, and/or handling of any 
marine mammal injury or stranding cases.
    The best available science indicates that the anticipated impacts 
from the specified activities potentially include avoidance, cessation 
of foraging or communication, TTS and PTS, stress, masking, etc. (as 
described in the Effects of the Specified Activities on Marine Mammals 
and their Habitat section in the proposed rule). NMFS emphasizes that 
there is no evidence that noise resulting from offshore wind 
development-related specified activities would cause marine mammal 
strandings, and there is no evidence linking recent large whale 
mortalities and currently ongoing offshore wind activities. This point 
has been well supported by other agencies, including BOEM and the 
Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring 
2023). If the best available science indicates the takings allowed 
under these regulations may be having more than a negligible impact, 
NMFS must suspend or withdraw the LOA after notice and opportunity for 
public comment.
    If a marine mammal appears to be injured or strands nearby during 
construction activities, the Marine Mammal Health and Stranding 
Response Program (MMHSRP), established by the MMPA, would be 
responsible for mobilizing a response, if and where appropriate. This 
program coordinates emergency responses to sick, injured, distressed, 
or dead seals, sea lions, dolphins, porpoises, and whales. The MMHSRP 
works with volunteer stranding and entanglement networks as well as 
local, tribal, state, and federal government agencies to coordinate and 
conduct emergency responses to stranded or entangled marine mammals. 
The networks also respond, when safe and feasible, to document and 
recover carcasses. It does not and cannot respond to every stranded 
marine mammal, and it is not responsible for disposing of carcasses. 
The type of examination conducted varies and depends on availability of 
resources, location, carcass accessibility, and the decomposition 
state. A necropsy report, when written, includes data which are 
compiled over several weeks to months and then analyzed for a possible 
cause of death determination and findings. National and Regional 
summaries of stranding statistics are available at: https://www.fisheries.noaa.gov/resource/publication-database/marine-mammal-health-and-stranding-response-program-reports. Any strandings or marine 
mammals in need of care that occur in the vicinity of the Project Area 
during the specified activities would be the responsibility of the 
local stranding and/or entanglement network authorized by the MMHSRP.
    Comment 5: The DNREC recommends extending the seasonal restriction 
on impact pile driving to November 1 through April 30, a time period 
reflecting highest activity levels of North Atlantic right whales, to 
reduce risk to North Atlantic right whales.
    Response: NMFS has restricted foundation installation pile driving 
from December through April, a time period which represents the times 
of year when North Atlantic right whales are most likely to be in the 
project area. However, we recognize that the density of North Atlantic 
right whales begins to elevate in November, as shown by Roberts et al. 
(2023). US Wind's planned pile driving activity schedule does not 
include pile driving in November. However, a limited amount of pile 
driving in November may occur if the Project experiences significant 
delays. Should pile driving in November be necessary, US Wind has 
agreed to restrict pile driving to the maximum extent practicable. In 
any time of year when foundation installation is occurring, a visual 
sighting of a North Atlantic right whale by foundation installation 
PSOs or an acoustic detection within a 10 km PAM monitoring zone 
triggers a delay in pile driving commencement or shutdown. These 
mitigation measures

[[Page 84681]]

are designed to reduce takes of North Atlantic right whales to the 
maximum extent possible.
    NMFS neither anticipates nor authorizes take of North Atlantic 
right whales by Level A harassment (PTS) from this activity. While NMFS 
is authorizing a total of 10 takes by Level B harassment of North 
Atlantic right whales incidental to any Project activities over the 5-
year effective period of this rulemaking, the required mitigation will 
affect the least practicable adverse impact on the species from these 
activities. Specifically, the largest modeled Level B harassment zone 
size (5.25 km) is for impact pile driving of the 11-m monopiles, 
however the clearance and shutdown zone for North Atlantic right whales 
for impact pile driving is any distance. Any Level B harassment that is 
not avoided is not expected to impact important feeding or other 
behaviors that may occur in the Project Area in a manner that would 
pose energetic or reproductive risks for any individuals. NMFS also 
notes that North Atlantic right whale presence, while not completely 
absent, decreases significantly during summer months as compared to 
winter when the majority of foundation installation would occur. For 
these reasons, NMFS finds that expanded temporal restrictions are not 
warranted.
    Comment 6: DNREC suggests that NMFS should require US Wind to 
maintain the 500-meter separation distance for North Atlantic right 
whales for all in-water construction activities, including activities 
for which take is not requested. The commenters further note that 
increased noise levels may increase stress in North Atlantic right 
whales, and the commenters, as well as the Caesar Rodney Institute, 
recommend that NMFS should not approve any offshore wind activities 
that may further impact North Atlantic right whales.
    Response: NMFS disagrees with the commenter's suggestion for 
requiring a 500-m separation distance for North Atlantic right whales 
for all in-water construction activities. The required vessel 
separation distance from North Atlantic right whales during vessel 
transit and HRG surveys is 500 m, and the North Atlantic right whale 
clearance and shutdown zones are ``any distance'' for impact pile 
driving activities, exceeding the Level B harassment zone of 5.25 km 
and further reducing the likelihood of harassment for North Atlantic 
right whales in the area. As noted by the commenter, NMFS will require 
US Wind to cease activities in response to any marine mammal on a path 
toward or that comes within 10 m of in-water construction equipment 
involving heavy machinery other than pile driving (e.g., trenching, 
cable laying, etc.). These non-pile driving in-water construction 
operations are relatively low impact (take is not anticipated or 
authorized) and the goal of the 10 m separation distance is to prevent 
contact between marine mammals and heavy construction equipment, rather 
than to limit exposure to noise. NMFS has determined that an increase 
in the shutdown distance for these in-water construction operations 
involving heavy equipment and not anticipated to result in incidental 
take is not necessary to affect the least practicable adverse impact.
    The commenters' recommendation for NMFS to not approve offshore 
wind activities that may impact North Atlantic right whales is outside 
the scope of this final rule as NMFS does not approve offshore wind 
activities; NMFS only authorizes take of marine mammals incidental to 
these activities. NMFS is required to authorize the requested 
incidental take if it finds the total incidental take of small numbers 
of marine mammals by U.S. citizens ``while engaging in that (specified) 
activity'' within a specified geographical region during the 5-year 
period (or less) will have a negligible impact on such species or stock 
and, where applicable, will not have an unmitigable adverse impact on 
the availability of such species or stock for subsistence uses (16 
U.S.C. 1371(a)(5)(A)). As described in the proposed rule and this final 
rule, NMFS has included requirements for mitigation measures that 
effect the least practicable adverse impact on all marine mammal 
species or stocks, including North Atlantic right whales, and their 
habitat, as required under the MMPA (16 U.S.C. 1371(a)(5)(A)(i)(II).
    Comment 7: Commenters note that there is a higher potential of 
vessel strikes as whales may respond to noise harassment by leaving or 
avoiding the Lease Area and moving into high traffic shipping lanes. 
The commenters further note that avoidance of the Project Area may 
increase stress and confusion for whales, resulting in an increased 
potential for vessel strikes and entanglement.
    Response: NMFS disagrees that there is necessarily a higher 
potential for vessel strikes specifically due to whales leaving the 
area to avoid noise from project activities. NMFS analyzed the 
potential for vessel strike in the proposed rule. While acknowledging 
that whales may temporarily avoid the area where the specified 
activities occur and that elevated stress levels is a potential 
response to noise exposure, NMFS does not anticipate, based on the best 
available science, that whales will abandon their habitat, be displaced 
in a manner that would specifically result in a higher risk of vessel 
strike, or become confused in a manner that would specifically result 
in a higher risk of vessel strike. The commenter does not provide 
evidence and no evidence identified by NMFS has found that this would 
be a reasonably anticipated outcome of the specified activity. The 
primary activity that is anticipated to result in temporary avoidance 
of the otherwise used habitat is foundation installation impact pile 
driving. Further, not only would this activity be limited to times of 
year when North Atlantic right whale presence is low, pile driving 
would be intermittent, and pile driving would only occur for a limited 
time over the course of three years, with PSOs monitoring both visual 
and acoustic cues. Any sighting of a North Atlantic right whale within 
any distance from pile driving activities would immediately halt such 
activity until the North Atlantic right whale left the area of their 
own volition.
    Comment 8: DNREC indicates proper site condition identification 
should be conducted to minimize the need for US Wind to waive the 
shutdown requirement for pile refusal or pile instability purposes. 
DNREC further notes that HRG micro-siting surveys should be used to 
identify any seabed debris, unexploded ordnances, or other substrate 
conditions that could negatively impact pile driving operations.
    Response: The need to waive the shutdown requirement due to pile 
refusal is expected to be low. However, regardless, additional 
surveying to assess the likelihood of pile refusal in advance would not 
change the need to waive the shutdown if necessary for human safety or 
to avoid equipment damage. Regarding the detection of unexploded 
ordnance, US Wind plans to conduct HRG micrositing surveys to identify 
potential UXOs for avoidance of Project activities. US Wind has 
provided the information necessary for NMFS to conduct its analysis and 
make the necessary determinations, and additional survey requirements 
are not warranted.

Monitoring, Reporting, and Adaptive Management

    Comment 9: The Commission recommends that NMFS ensure that the 
mitigation, monitoring, and reporting requirements for the construction 
of wind energy facilities are sufficiently detailed from the start and 
specified in the proposed rule so that these measures

[[Page 84682]]

are available for public comment. The Commission indicates that by not 
requiring US Wind to include mitigation and monitoring plans for the 
specified activities as part of the proposed rule, NMFS is not able to 
assess whether US Wind would be able to successfully implement 
mitigation measures adequate to effect the least practicable adverse 
impact on marine mammal species and the transparency of the public 
review process is compromised. The Commission suggests that US Wind 
submit the SFV plan, foundation pile driving plan, and PAM plan to NMFS 
for approval in advance of promulgating the final rule, and NMFS should 
post these plans for public comment. In particular, the Commission 
indicates that NMFS include the number of platforms that would be 
required to monitor for marine mammals during foundation installation.
    Response: Due to other concurrent permitting processes and 
acknowledging the need for flexibility and project-specific 
implementation, NMFS disagrees these plans must be submitted prior to 
promulgating the final rule. The purpose of the Plans is for the 
developer to provide details to NMFS on how they would satisfy the 
criteria identified in the rule. These criteria are available for 
public review and comment.
    In regards to the Commission's recommendation to include a 
requirement for the number of monitoring platforms during foundation 
installation, NMFS has added a requirement to the final rule at Sec.  
217.345 Monitoring and Reporting Requirements for a minimum of 3 
monitoring platforms during foundation installation. US Wind will be 
required to employ a minimum of 3 active PSOs monitoring from the 
foundation installation vessel as well as a minimum of 3 active PSOs 
monitoring from PSO vessels. US Wind must employ at least two PSO 
vessels for monitoring during foundation installation.
    Comment 10: A commenter recommends that the monitoring area should 
be expanded beyond the 125 square mile (80,000 acres) Maryland Wind 
Energy Area (MDWEA) to ensure that project activities can be halted in 
time for animals to pass through the area unharmed. The commenter 
further notes that the monitoring area should be expanded before any 
decisions are made.
    Response: NMFS disagrees with the commenter that the planned 
monitoring area should be expanded beyond the boundaries of the MDWEA. 
As described in the proposed rule and this final rule, NMFS is 
requiring that US Wind employ both visual and PAM methods for 
monitoring, as both approaches aid and complement each other (Van 
Parijs et al., 2021). The use of PAM will augment visual detections for 
foundation pile driving, especially for activities with the largest 
zones, to expand observer coverage of the area. NMFS is requiring the 
use of PAM to monitor 10 km zones around the piles and that the systems 
be capable of detecting marine mammals during pile driving within this 
zone. In addition, NMFS is requiring US Wind to establish species-
specific clearance and shutdown zones during impact pile driving and 
HRG surveys. The purpose of clearance and shutdown zones are to 
minimize and prevent potential instances of auditory injury and more 
severe behavioral disturbances by delaying the commencement of activity 
or halting the activity. NMFS has determined that the planned suite of 
mitigation and monitoring measures described in the proposed rule and 
this final rule are sufficient to effect the least practicable adverse 
impact on marine mammal species in the project area.

Effects Assessment

    Comment 11: Multiple commenters note that the LOA should not be 
issued until the cumulative effects of all proposed projects are fully 
considered. Commenters further indicate that the MMPA rulemaking does 
not assess cumulative impacts on the affected marine mammal species, 
that the ITA does not align with NEPA, and that the NEPA process is 
incomplete. Commenters further indicate that the ITA should not be 
issued until the EIS is complete.
    Response: NMFS is required to authorize the requested incidental 
take if it finds the total incidental take of small numbers of marine 
mammals by U.S. citizens ``while engaging in that (specified) 
activity'' within a specified geographical region 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 FEIS as part of its inter-agency 
coordination and determined that the analysis in the FEIS for the 
Maryland Wind Offshore Wind Project is sufficient to cover the scope of 
the marine mammal incidental take authorization described in this final 
rule.
    This FEIS addresses cumulative impacts related to the Project and 
substantially similar activities in similar locations. Cumulative 
impacts regarding the promulgation of regulations and issuance of an 
LOA for activities planned by US Wind have been adequately addressed in 
the adopted EIS that supports NMFS' determination that this action has 
been appropriately analyzed under NEPA. Separately, the cumulative 
effects of the Project on ESA-listed species, including the North 
Atlantic right whale, were analyzed under section 7 of the ESA when 
NMFS engaged in formal inter-agency consultation with the NOAA Greater 
Atlantic Regional Field Office (GARFO) and initiated consultation on 
December 5, 2023. The Biological Opinion (BiOp) for the Project 
determined that NMFS' promulgation of regulations and issuance of an 
LOA for activities, individually and cumulatively, are likely to 
adversely affect, but not jeopardize, listed marine mammals.
    The FEIS was finalized by BOEM on August 2, 2024 and adopted by 
NMFS on September 4, 2024, thus completing the NEPA process.
    Comment 12: Multiple commenters recommend that NMFS consider the 
impacts of structure presence and operations, including those from 
operational noise on marine mammals as well as ocean mixing and 
vibrations on phytoplankton, zooplankton, and the food chain. A 
commenter noted that

[[Page 84683]]

analysis of incidental take during wind turbine operation is 
insufficient. Commenters indicate that NMFS should consider the impacts 
of operational noise on marine mammals since construction and operation 
will proceed simultaneously, and actual take from construction may be 
masked by any take related to operational noise. Commenters further 
suggest the LOA should include a full analysis of impacts of 
operational noise and recommend that offshore wind energy projects be 
pushed back a minimum of 20 kilometers (km) from areas used by North 
Atlantic right whales for feeding and other life history activities.
    Response: In the proposed rule, NMFS considered the impacts to 
marine mammals from operational noise and to their habitat, including 
prey, based on the best available science. In this final rule, NMFS has 
supplemented that analysis with new scientific information that has 
become available regarding these issues since publishing the proposed 
rule. This new information does not change our findings. The commenters 
did not provide scientific evidence that suggests the analysis within 
the proposed rule was unsupported. NMFS has fully evaluated the 
potential impacts of operational noise from issuing this final rule 
authorizing take of marine mammals over the five year effective period 
of this rulemaking and the potential impacts from long-term operations 
via the BiOp. We refer the reader to the Effects of the Specified 
Activities on Marine Mammals and Their Habitat section and the 
Negligible Impact Determination section in the proposed and this final 
rule for further details. In addition, US Wind will be required to use 
sound field verification (SFV) for measuring operational noise as wind 
turbines become operational to further evaluate the impacts of 
operational noise on marine mammals and their habitat.
    In regards to moving the Project a minimum of 20 km away from North 
Atlantic right whale habitat, NMFS disagrees with this recommendation. 
As noted in the proposed rule, the Project Area overlaps with a North 
Atlantic right whale biologically important area (BIA) for migration 
but not with any feeding, breeding, or calving areas. 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 163.8 km while the 
width of the Lease Area, at the longest point, is approximately 33.1 
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); thereby, any 
associated bio-energetic expenditure is anticipated to be small.
    Comment 13: Several commenters claimed the request for an ITA 
should be denied alleging the specified activities kill as well as harm 
marine mammals and some commenters suggested that the ongoing whale 
UMEs, including the whale deaths occurring in the winter of 2022-2023, 
are linked with ongoing offshore wind activities. One commenter further 
claimed that although ``the recent deaths and strandings of whales and 
other marine mammals along the eastern seaboard have not been proven to 
be the direct result of offshore wind activities, these activities have 
not been disproven as a contributing factor.''
    Response: NMFS disagrees that the ITA should be denied, as we have 
made the necessary findings required by the MMPA for issuance and these 
findings are supported by the necessary analyses and best available 
science. Neither the proposed rule nor this final rule allow mortality 
or serious injury of marine mammals to be authorized. The best 
available science indicates that the anticipated impacts from the 
specified activities potentially include avoidance, cessation of 
foraging or communication, TTS and PTS, stress, masking, etc. (as 
described in the Effects of the Specified Activities on Marine Mammals 
and their Habitat section in the proposed rule). NMFS emphasizes that 
there is no evidence that noise resulting from offshore wind 
development-related specified activities would cause marine mammal 
strandings, and there is no evidence linking recent large whale 
mortalities and currently ongoing offshore wind activities. The 
commenters offer no such evidence or other scientific information to 
substantiate their claim. This point has been well supported by other 
agencies, including BOEM and the Marine Mammal Commission (Marine 
Mammal Commission Newsletter, Spring 2023). Additionally, a recent 
paper by Thorne and Wiley (2024) reviewed spatiotemporal patterns of 
strandings, mortalities, and serious injuries of humpback whales along 
the US 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.
    There are ongoing UMEs for humpback whales, North Atlantic right 
whales, and minke whales along the Atlantic coast from Maine to 
Florida, which includes animals stranded since 2016 and 2017, 
respectively, and we provide further information on these UMEs in the 
species specific subsections in the Description of Marine Mammals in 
the Specific Geographic Region section of this final rule. Vessel 
strikes and entanglement in fishing gear are the greatest human threats 
to large whales. Partial or full necropsy examinations were conducted 
on approximately half of the humpback whales that recently stranded 
along the U.S. east coast. Necropsies were not conducted on other 
carcasses because they were too decomposed, not brought to land, or 
stranded on protected lands (e.g., national and state parks) with 
limited or no access. Of the humpback whales examined (roughly 90), 
about 40 percent had evidence of human interaction, either ship strike 
or entanglement. Based upon necropsies conducted thus far, the 
preliminary cause of mortality, serious injury, and morbidity in 
stranded North Atlantic right whales is entanglement or vessel strike. 
Full or partial necropsies have been conducted on approximately 60 
percent of the stranded minke whales. Preliminary findings have shown 
evidence of human interaction or infectious disease. The best available 
science indicates that only a limited

[[Page 84684]]

amount of Level A harassment (PTS) or Level B harassment (disruption of 
behavioral patterns (e.g., avoidance)), may occur as a result of US 
Wind's specified activities. NMFS emphasizes that there is no credible 
scientific evidence available suggesting that mortality and/or serious 
injury is a potential outcome of the planned activities. 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.

Other

    Comment 14: Multiple commenters note that more data are needed on 
the impact of wind turbine construction and operation on marine 
mammals, and that projects should be paused until these data are 
available. Commenters also recommend collecting sound level 
measurements on similar turbines, such as Vineyard Wind 1 Offshore Wind 
Farm, to inform the proposed rulemaking and LOA.
    Response: The MMPA requires NMFS to evaluate the effects of the 
specified activities in consideration of the best scientific evidence 
available and to issue the requested incidental take authorization if 
it makes the necessary findings. The MMPA does not allow NMFS to delay 
issuance of the requested authorization on the presumption that new 
information or new regulations will become available in the future. If 
new information becomes available in the future, NMFS may modify the 
mitigation and monitoring measures in an LOA issued under these 
regulations through the adaptive management provisions, as described in 
Sec.  217.347c(1) of this final rule. Furthermore, NMFS is required to 
withdraw or suspend an LOA if, after notice and public comment unless 
an emergency exists, it determines the authorized incidental take may 
be having more than a negligible impact on a species or stock. NMFS has 
duly considered the best scientific evidence available in its issuance 
of the final rule and made the required findings to issue this rule.
    NMFS also notes that, as proposed, this final rule requires that no 
unmitigated piles can be installed and that SFV is required for piles 
to ensure that measured sound levels do not exceed those modeled 
assuming 10 dB of attenuation. NMFS acknowledges the importance of 
transparency in the reporting process and plans to make all final 
annual SFV reports available on our website. As mentioned above, since 
the publication of the proposed rule NMFS has received SFV reports from 
Vineyard Wind 1 that, although challenging, allow for comparison 
between modeled and measured distances to the Level A harassment and 
Level B harassment thresholds. These results are available on our 
website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-llc-construction-vineyard-wind-offshore-wind.
    Comment 15: A commenter states that NMFS' review of the ITA 
application was incomplete and the ITA should be denied. Another 
commenter further states that approval of the ITA would be a 
``dereliction of duty'' and does not align with NOAA's mission.
    Response: NMFS disagrees with the commenter that the ITA should be 
denied. NOAA's stewardship mission includes our responsibility to 
uphold and implement the provisions of multiple federal statutes 
designed to protect environmental resources, including the MMPA. The 
MMPA allows for the incidental take of marine mammals provided the 
necessary findings are made. As described in this Federal Register 
notice, NMFS has conducted the necessary analysis to support our 
negligible impact finding. In addition, we have required mitigation to 
ensure the least practicable adverse impact on marine mammals and their 
habitat. We have also included monitoring and reporting requirements to 
monitor compliance and impacts to marine mammals.

Changes From the Proposed to Final Rule

    Since the publication of the proposed rule in the Federal Register 
on January 4, 2024 (89 FR 504), NMFS has made changes, where 
appropriate, that are reflected in the preamble text of this final rule 
and the final regulatory text. These changes are briefly identified 
below, with more information included in the indicated sections of the 
preamble to this final rule. 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.

Changes to Information Provided in the Preamble

    The information found in the preamble of the proposed rule was 
based on the best available information at the time of publication. 
Since publication of the proposed rule, new information has become 
available, which has been incorporated into this final rule as 
discussed below.
    The following changes are reflected in the Description of Marine 
Mammals in the Specific Geographic Region section of the preamble to 
this final rule:
    Given the release of NMFS' draft 2023 Stock Assessment Report (SAR) 
(89 FR 5495, January 29, 2024), we have updated the population estimate 
for the North Atlantic right whale (Eubalaena glacialis) from 368 to 
340 and the total mortality/serious injury (M/SI) amount from 8.1 to 
27.2. This increase is due to the inclusion of undetected M/SI (whereas 
8.1 accounted only for detected M/SI). As described in the draft 2023 
SARs (89 FR 5495, January 29, 2024), the use of the refined methods of 
Pace et al. (2021), the estimated annual rate of total mortality of 
adults and juveniles for the period 2016-2020 was 27.2, which is 3.4 
times larger than the 8.1 total derived from reported mortality and 
serious injury for the same period.
    Given the availability of new information, we have made updates to 
the UME summaries for North Atlantic right whales, humpback whales, and 
minke whales.
    The following change is reflected in the Potential Effects of 
Specified Activities on Marine Mammals and Their Habitat section of the 
preamble to this final rule:
    We have added information relating to the broken blade at the 
Vineyard Wind 1 Lease Area, the rarity of this event occurring, and 
that no take was requested, anticipated, proposed, or authorized 
incidental to blade failure so this is not discussed further in this 
document.
    The following changes are reflected in the Estimated Take, 
Mitigation, and Monitoring and Reporting sections of the preamble to 
this final rule:
    This final rule requires US Wind to employ a minimum of three 
monitoring platforms, including the pile driving vessel platform and a 
minimum of two PSO support vessels. Each platform must employ a minimum 
of three active on-duty PSOs.
    We have also added a requirement for US Wind to cease pile driving 
activities 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 requirement for PAM operators to receive conditional or 
unconditional approval was removed as the PAM operators' experience is 
relevant to all PAM operators and the conditional/unconditional 
approval framework does not apply.

[[Page 84685]]

    The educational requirement for PSOs and PAM operators to have 
received a bachelor's degree from ``an accredited college or 
university'' has been removed. PSOs and PAM operators are still 
required to have received a bachelor's degree, although experience can 
still be substituted for education.
    The requirement for submission of PAM detection data to the NEFSC 
has been updated due to a change in NEFSC reporting requirements. US 
Wind must submit full PAM detection data within 90 days after pile 
driving is complete and every 90-calendar days for transit lane PAM.

Changes in the Regulatory Text

    We have made the following changes to the regulatory text, which 
are reflected, as appropriate, throughout this final rule and 
described, as appropriate, in the preamble.
    We have removed duplicative measures and, for clarity and 
consistency, we revised paragraph Sec.  217.340(b) of the regulatory 
text to fully describe the specified geographical region.
    We have modified a proposed measure that set hammer energy 
guidelines during foundation and MET Tower installation to allow 
greater flexibility in response to the circumstances of the particular 
installation. We have retained the measures related to actions 
necessary should SFV identify that distances to NMFS harassment 
thresholds, regardless of hammer energies, are longer than anticipated.
    For consistency, NMFS has included conditions in Sec.  217.344(a) 
to clarify mitigation requirements discussed in the preamble. The 
conditions for commencing pile driving and HRG survey activities are 
clarified.
    NMFS has added additional clarification on the authority of PSOs 
and PAM operators in Sec.  217.344(a) to ensure compliance and proper 
implementation of the regulations.
    NMFS has clarified language in Sec.  217.344(b) to specify that 
this measure applies to vessels traveling in the specified geographical 
region and when Project vessels may deviate from vessel speed avoidance 
measures. NMFS has also defined the term ``emergency'' for clarity.
    In Sec.  217.344(b)(1), (11), and (12), Sec.  217.344(c)(10), and 
(15), Sec.  217.344(d)(2), Sec.  217.345(a)(2), and (4), Sec.  
217.345(b)(2), (4), (8), and (9), NMFS has made minor changes to 
formatting and wording to more clearly state the requirements.
    NMFS has added a requirement for all vessel operators to reduce 
speed to 10 knots (kn) or less when any large whale (other than a North 
Atlantic right whale, for which the requirement was already included) 
or large assemblages of cetaceans are observed within 500 m (0.31 mi) 
of a transiting vessel in Sec.  217.344(b).
    To align with the BiOp, NMFS has modified thorough SFV requirements 
(Sec.  217.344) and added a requirement for US Wind to conduct 
abbreviated SFV monitoring during pile driving activities in Sec.  
217.344(c).
    NMFS has updated the requirement for US Wind to conduct SFV 
measurements during turbine operations instead of upon the commencement 
of turbine operations in Sec.  217.344(c)(16).
    In Sec.  217.345(a), NMFS has updated the requirements for PSO and 
PAM operator qualifications. The requirement for PAM operators to 
receive conditional or unconditional approval was removed because all 
PAM operators are subject to a list of qualifications presented in the 
proposed rule and do not need to obtain conditional or unconditional 
approval. In addition, the educational requirement for PSOs and PAM 
operators to receive their bachelor's degrees from an accredited 
college or university has been removed, although PSOs and PAM operators 
are still required to have received a bachelor's degree, although 
experience can still be substituted for education.
    In Sec.  217.345(b)(7), NMFS has added a requirement for visual 
observations of marine mammals by pile driving Project personnel to be 
reported to on-duty PSOs and vessel captains to increase situational 
awareness.
    In response to comments and to improve detection capabilities, NMFS 
has added a requirement for a minimum of 3 PSOs to be on-duty on each 
observation platform during impact pile driving and that, in addition 
to PSOs on the pile driving vessel, PSOs must also be observing for 
marine mammals on two dedicated PSO vessels.
    In Sec.  271.345(f)(6), NMFS has updated the requirement for 
reporting PAM detection data due to a change in NEFSC reporting 
requirements. US Wind must submit full PAM detection data within 90 
days after foundation installation ceases.

Description of Marine Mammals in the Area of Specified Activities

    As noted in the Changes from the Proposed to Final Rule section, 
since publication of the proposed rule (89 FR 504, January 4, 2024), 
updates have been made to the abundance estimate for North Atlantic 
right whales and the UME summaries of multiple species. These changes 
are described in detail in the sections below; otherwise, the 
Description of Marine Mammals in the Specific Geographic Region section 
has not changed since the publication of the proposed rule in the 
Federal Register (89 FR 504, January 4, 2024).
    Thirty-eight marine mammal species under NMFS' jurisdiction have 
geographic ranges within the western North Atlantic OCS (Hayes et al., 
2023). Sections 3 and 4 of US Wind's application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history of the potentially affected 
species (US Wind, 2023). Additional information regarding population 
trends and threats may be found in NMFS' SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS' 
website (https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks for which take is authorized 
under this final rule and summarizes information related to the species 
or stock, including regulatory status under the MMPA and ESA and 
potential biological removal (PBR), where known. PBR is defined as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS' SARs; (16 U.S.C. 1362(20)). While no mortality is anticipated or 
authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species and other threats. Marine mammal abundance 
estimates presented in this document represent the total number of 
individuals that make up a given stock or the total number estimated 
within a particular study or survey area. NMFS' stock abundance 
estimates for most species represent the total estimate of individuals 
within the geographic area, if known, that comprises that stock. For 
some species, this geographic area may extend beyond U.S. waters. All 
managed stocks in this region are assessed in NMFS' U.S. Atlantic and 
Gulf of Mexico SARs. All values presented in table 3 are the most 
recent available data at the time of publication which can be found in 
NMFS' 2023 draft SARs (89 FR 5495, January 29, 2024), available online 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

[[Page 84686]]



                              Table 3--Marine Mammal Species That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
           Common name \1\                Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey) \3\               SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             340 (0; 337; 2021) \5\        0.7   \5\ 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 Delphinidae:
    Killer whale \8\................  Orcinus orca...........  Western North Atlantic.  -, -, N             UNK (UNK, UNK, 2016)..        UNK          0
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3, 30,627,          306        5.7
                                                                                                             2021).
    Short-finned pilot whale........  Globicephala             Western North Atlantic.  -, -, Y             18,726 (0.33, 14,292,         143        218
                                       macrorhynchus.                                                        2021).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -, -, N             64,587 (0.24, 52,801,         507         28
                                                                Offshore.                                    2021) \6\.
    Bottlenose dolphin..............  Tursiops truncatus.....  Northern Migratory       -, -, Y             6,639 (0.41, 4,759,            48  12.2-21.5
                                                                Coastal.                                     2016) \7\.
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             93,100 (0.56, 59,897,       1,452        414
                                                                                                             2021).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             31,506 (0.28, 25,042,         250          0
                                                                                                             2021).
    Pantropical spotted dolphin.....  Stenella attenuata.....  Western North Atlantic.  -, D, N             2,757 (0.50, 1,56,             19          0
                                                                                                             2021).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             44,067 (0.19, 30,662,         307         18
                                                                                                             2021).
    Rough-toothed dolphin \8\.......  Steno bredanensis......  Western North Atlantic.  -, -, N             unk (unk, unk, 2021)..      undet          0
    Striped dolphin \8\.............  Stenella coeruleoalba..  Western North Atlantic.  -, -, N             48,274 (0.29, 38,040,         529          0
                                                                                                             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 \9\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,911 (0.20, 23,624,       1,512      4,570
                                                                                                             2021).
    Harp seal.......................  Pagophilus               Western North Atlantic.  -, -, N             7.6M (UNK, 7.1M, 2019)    426,000    178,573
                                       groenlandicus.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR, or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports 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.
\4\ 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).
\5\ In the proposed rule (89 FR 504, January 4, 2023), a population estimate of 368 was used which represented the best available science at the time of
  publication. However, since the publication of the proposed rule, a new estimate (n=340) was released in NMFS' draft 2023 SARs and has been
  incorporated into this final rule. The current draft SAR includes an estimated population (N best 340) based on sighting history through December 2021
  (89 FR 5495, January 29, 2024). In October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size
  based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023); Total annual
  average observed North Atlantic right whale mortality during the period 2017-2021 was 7.1 animals and annual average observed fishery mortality was
  4.6 animals. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means, accounting for
  undetected mortality and serious injury.
\6\ As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form.
\7\ There are two morphologically and genetically distinct forms of common bottlenose dolphin (Duffield et al., 1983; Mead and Potter, 1995; Rosel et
  al., 2009) described as the coastal and offshore forms in the western North Atlantic (Hersh and Duffield, 1990; Mead and Potter, 1995; Curry and
  Smith, 1997; Rosel et al., 2009). The two morphotypes are genetically distinct based upon both mitochondrial and nuclear markers (Hoelzel et al.,
  1998; Rosel et al., 2009). The genetic and morphological differences recently led to the coastal form being described as a new species, Tursiops
  erebennus (Costa et al., 2022; 89 FR 5495, January 29, 2024). Population estimates are based upon recent surveys in 2021.
\8\ US Wind did not request take of these species; however, their exposure analysis demonstrates there is potential for harassment. Although these
  species are rare in the project area, NMFS would authorize a small amount of Level B harassment in the case of potential presence during pile driving.
\9\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,431. The annual M/SI value given is for the total stock.

    Of the marine mammal species and/or stocks with geographic ranges 
that include the western North Atlantic OCS (table 3-1 in US Wind 
incidental take authorization (ITA) application), 19 are not expected 
to be present or are considered rare or unexpected in the project area 
based on sighting and distribution data; they are, therefore, not 
discussed further beyond the explanation provided here. Specifically, 
the following cetacean species are known to occur off of Maryland but 
are not expected to occur in the project area due to the location of 
preferred habitat outside the Lease Area and ECCs, based on the best 
available information, and therefore US Wind did not request, and NMFS 
is not authorizing take, of these species: Blue whale (Balaenoptera 
musculus), Cuvier's beaked whale (Ziphius cavirostris), four species of 
Mesoplodont beaked whales (Mesoplodon densitostris, M. europaeus, M. 
mirus, and M. bidens), Atlantic white-sided dolphin (Lagenorhynchus 
acutus), Clymene dolphin (Stenella clymene), dwarf sperm whale (Kogia 
sima), false killer whale (Pseudorca crassidens), Fraser's dolphin

[[Page 84687]]

(Lagenodelphis hosei), melon-headed whale (Peponocephala electra), 
northern bottlenose whale (Hyperoodon ampullatus), pygmy killer whale 
(Feresa attenuata), pygmy sperm whale (Kogia breviceps), sperm whale 
(Physeter macrocephalus), spinner dolphin (Stenella longirostris), and 
white-beaked dolphin (Lagenorhynchus albirostris). Two species of 
phocid pinnipeds are also uncommon in the project area, including: harp 
seals (Pagophilus groenlandica) and hooded seals (Cystophora cristata). 
However, harp seals are known to strand in coastal Maryland. Therefore, 
the LOA, if issued, would authorize take of harp seals.
    In addition to the species listed in table 2, the Florida manatee 
(Trichechus manatus; a sub-species of the West Indian manatee) has been 
previously documented as an occasional visitor to the Mid-Atlantic 
region during summer months (U.S. Fish and Wildlife Service (USFWS), 
2019). However, as manatees are managed solely under the jurisdiction 
of the U.S. FWS and are considered rare or unexpected in the Project 
Area, they are not considered or discussed further in this document.
    A detailed description of the species likely to be affected by the 
Project, including brief introductions to the species and relevant 
stocks as well as available information regarding population trends and 
threats, and information regarding local occurrence, were provided in 
the proposed rule (89 FR 504, January 4, 2024). Other than adjustments 
to population statistics (e.g., North Atlantic right whale population 
abundance) and UME updates, we are not aware of any changes in the 
status of the species and stocks listed in table 2; therefore, detailed 
descriptions are not provided here. Please refer to the proposed rule 
for these descriptions (89 FR 504, January 4, 2024). Please also refer 
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.
    Since the publication of the proposed rule, the following updates 
have occurred to the below species in regards to general information or 
their active UMEs.

North Atlantic Right Whale

    In January 2024, NMFS released its draft 2023 SARs, (89 FR 5495, 
January 29, 2024) which updated the population estimate 
(Nbest) of North Atlantic right whales to 340 individuals 
(an increase from the final 2022 SARs (n=338); the annual M/SI value 
dropped from the final 2022 SAR of 31.2 to 27.2 in the draft 2023 SAR. 
Beginning in the 2022 SARs, the M/SI for North Atlantic right whale 
included the addition of estimated undetected mortality and serious 
injury, which had not been previously included in the SAR. The current 
population estimate is equal to the North Atlantic Right Whale 
Consortium's 2022 Annual Report Card, which identifies the population 
estimate as 340 individuals (Pettis et al., 2023).
    As described in the proposed rule, elevated North Atlantic right 
whale mortalities have occurred since June 7, 2017, along the U.S. and 
Canadian coast, with the leading category for the cause of death for 
this UME determined to be ``human interaction,'' specifically from 
entanglements or vessel strikes. Since publication of the proposed 
rule, the number of animals considered part of the UME has increased. 
As of September 3, 2024, there have been 40 confirmed mortalities 
(dead, stranded, or floaters), 1 pending mortality, and 36 seriously 
injured free-swimming whales for a total of 77 whales. The UME also 
considers animals with sublethal injury or illness (called 
``morbidity''; n=65) 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/2017-2024-north-atlantic-right-whale-unusual-mortality-event.

Humpback Whale

    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. This event was 
declared a UME in April 2017. Partial or full necropsy examinations 
have been conducted on approximately half of the known cases. Since 
publication of the proposed rule, the number of animals considered part 
of the UME has increased to 227 total mortalities (as of September 3, 
2024). More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    Since December 1, 2022, the number of humpback strandings along the 
mid-Atlantic coast, from North Carolina to New York, has been elevated. 
In some cases, the cause of death is not yet known; in others, vessel 
strike has been deemed the cause of death. As the humpback whale 
population has grown, they are seen more often in the Mid-Atlantic. 
These whales may be following their prey (small fish) which were 
reportedly close to shore in the 2022-2023 winter. Changing 
distributions of prey impact larger marine species that depend on them, 
and result in changing distribution of whales and other marine life. 
These prey also attract fish that are targeted by recreational and 
commercial fishermen, which increases the number of boats and amount of 
fishing gear in these areas. This nearshore movement increases the 
potential for anthropogenic interactions, particularly as the increased 
presence of whales in areas traveled by boats of all sizes increases 
the risk of vessel strikes.

Minke Whale

    Since January 2017, a UME has been declared based on elevated minke 
whale mortalities detected along the Atlantic coast from Maine through 
South Carolina. As of September 3, 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.

Phocid Seals

    Since June 2022, elevated numbers of harbor seal and gray seal 
mortalities have occurred across the southern and central coast of 
Maine. This event was declared a UME in June 2022 and lasted through 
July 2022. The UME Investigative Team reviewed necropsy, 
histopathology, and diagnostic findings. They determined the UME was 
attributed to spillover events of the highly pathogenic avian influenza 
H5N1 virus from infected wild birds to harbor and gray seals. An 
ongoing HPAI H5N1 global outbreak in domestic and wild birds and wild 
mammals began in 2021. Live seals showed signs of respiratory and 
neurological disease including nasal and ocular discharge, coughing, 
unresponsiveness, and seizures. Eighteen percent of the stranded seals 
(33 out of 180) were tested for avian influenza via polymerase-chain-
reaction. A subset of seals were positive for HPAI H5N1 with 
preliminary findings confirmed by the U.S. Department of Agriculture's 
National Veterinary Services Laboratories. Of the 33 seals tested 
during the UME period 19 (58 percent) were positive for H5N1 (17 harbor 
seals; 2 gray seals) and 14 (42 percent) tested negative. Twelve H5N1 
positive seals had histopathology conducted; 11 of those seals had 
lesions (primarily respiratory and/or

[[Page 84688]]

neurologic) suspected or consistent with avian influenza infection. 
Sequencing of the H5N1 virus detected in seals suggests the seals were 
infected from spillover events from infected wild birds to these seals. 
While the UME was not occurring in the area of the Project, the 
populations affected by the UME were the same as those potentially 
affected by the Project. Information on this UME is available online 
at: https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. 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 4.

                  Table 4--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans...............  7 Hz to 35 kHz.
(baleen whales)............................
Mid-frequency (MF) cetaceans...............  150 Hz to 160 kHz.
(dolphins, toothed whales, beaked whales,
 bottlenose whales).
High-frequency (HF) cetaceans..............  275 Hz to 160 kHz.
(true porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater).........  50 Hz to 86 kHz.
(true seals)...............................
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65-dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    Exposure to underwater noise from the Project's specified 
activities have the potential to result in Level A harassment or Level 
B harassment of marine mammals in the specified geographic region, but 
no serious injury or mortality. The proposed rule (89 FR 504, January 
4, 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 rule 
(e.g., BOEM et al., 2024; Holdman et al., 2023; Pirotta et al., 2024; 
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 rule. We provide a summary of these papers below.
    The recently released BOEM and NOAA Fisheries North Atlantic Right 
Whale Strategy (BOEM et al., 2024) identified actions related to 
mitigation and decision-support tools, research and monitoring, and 
collaboration, communication, and outreach to minimize risk and impacts 
to North Atlantic right whales. The identified actions would also allow 
for coordinated and efficient collaborations between Federal agencies 
and partners, collection and application of the best available 
scientific data, and implementation of effective mitigation measures. 
The Strategy also describes potential actions for further development 
as well.
    Pirotta et al. (2024) incorporated data and analysis of North 
Atlantic right whale length, compiled by the North Atlantic Right Whale 
Consortium, to investigate whether the smaller mean asymptotic length 
currently documented for North Atlantic right whales is associated with 
lower reproductive output. North Atlantic right whale mean asymptotic 
length (Stewart et al., 2021) and female calving probability (Pirotta 
et al., 2023) have been in decline for decades. Pirotta et al. (2024) 
expanded upon the conducted by Stewart et al. (2022) and quantified how 
length contributes to calving probability, while taking into account 
variation due to individual health of whales. The finding that smaller 
mean asymptotic length contributes to lower calving probability for 
North Atlantic right whales provides a greater understanding into 
drivers for decreasing reproductive output for this species.
    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 
proposed rule incorporated these density models into methodology for 
estimating take from foundation installation and HRG surveys (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 rule. For

[[Page 84689]]

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 rule did include real-time and daily 
awareness measures and sighting communication protocols, NMFS evaluated 
these measures and added details for clarity or updated the reporting 
mechanisms, such as in the case of sighting an injured North Atlantic 
right whale. Davis et al. (2023) analyzed North Atlantic right whale 
individual upcalls from 2 years of acoustic recordings in southern New 
England which showed that North Atlantic right 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 74 percent at 18 
h. Therefore, monitoring for at least 24 hours prior to activity will 
increase the likelihood of detecting an up-calling North Atlantic right 
whale.
    Thorne and Wiley (2024) recently reviewed spatiotemporal patterns 
of strandings, mortalities, and serious injuries of humpback whales 
along the U.S. east coast from 2016-2022 and found vessel strikes to be 
the major driver in the increase of humpback whale strandings, 
mortalities, and serious injury. Based upon the spatiotemporal 
analysis, no evidence was found that offshore wind development played a 
role in the increased number of strandings over time. In fact, the 
potential for vessel strike increased during the course of the study 
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.
    Similar to the discussion presented in the proposed rule, the BiOp 
stated it is likely the Project will produce a wind wake from operation 
of the turbines and that the foundations themselves will lead to 
disruptions in local conditions. The scale of these effects is expected 
to range from hundreds of meters and up to 1 km from each foundation 
and the changes in conditions may alter the distribution of nutrients, 
primary production, and plankton (Floeter et al., 2017; van Berkel et 
al., 2020). However, the BiOp concluded it is not expected that the 
impacts to oceanic conditions resulting from the Project will be large 
enough to affect regional conditions that could influence the 
distribution of prey or conditions that aggregate prey in the broader 
Mid-Atlantic Bight region or within or around the Maryland Wind WDA in 
a way that would have adverse effects on ESA-listed species. Therefore, 
NMFS expects any alteration of the biomass of plankton in the region, 
and therefore, the total food supply, to be so small that adverse 
effects on ESA-listed species are extremely unlikely to occur.
    Overall, there is no new scientific information regarding the 
general anticipated effects of OSW construction on marine mammals and 
their habitat that was not discussed in the proposed rule. The 
information and analysis regarding the potential effects on marine 
mammals and their habitat has not changed and is adopted here by 
reference (see 89 FR 504, January 4, 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, a project located off of Martha's Vineyard 
and Nantucket, 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.
    As noted above, wind turbine failure is considered rare, and NMFS 
still considers the likelihood that blade failure would occur pursuant 
to US Wind's specified activity during the effective period of the ITA 
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. US Wind 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

    This section provides an estimate of the number of incidental takes 
that may be authorized through this rule, which will inform both NMFS' 
consideration of ``small numbers'' and the negligible impact 
determination. The analysis related to take incidental to HRG surveys 
and foundation installation is unchanged since the proposed rule.
    Generally speaking, we estimate take by considering: (1) acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment (as well as impulse metric 
(Pascal-second) and peak sound pressure level thresholds above which 
marine mammals may incur non-auditory injury from underwater explosive 
detonations); (2) the area or volume of water that will be ensonified 
above these levels in a day; (3) the density or occurrence of marine 
mammals within these ensonified areas; and, (4) the number of days of 
activities. We note that while these factors can contribute to a basic 
calculation to provide an initial prediction of takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available. Below, we describe the factors considered here in 
more detail and present the take estimates.

Marine Mammal Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the

[[Page 84690]]

received level of underwater sound above which exposed marine mammals 
are likely to be behaviorally harassed (equated to Level B harassment) 
or to incur PTS of some degree (equated to Level A harassment). 
Thresholds have also been developed identifying the received level of 
in-air sound above which exposed pinnipeds would likely be behaviorally 
harassed. A summary of NMFS' 2018 thresholds can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Level B harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., other noises in the area) and the state 
of the receiving animals (e.g., hearing, motivation, experience, 
demography, life stage, depth), and can be difficult to predict (e.g., 
Southall et al., 2007, 2021; Ellison et al., 2012). Based on what the 
available science indicates and the practical need to use a threshold 
based on a metric that is both predictable and measurable for most 
activities, NMFS typically uses a generalized acoustic threshold based 
on received level to estimate the onset of behavioral harassment. NMFS 
generally predicts that marine mammals are likely to be behaviorally 
harassed in a manner considered to be Level B harassment when exposed 
to underwater anthropogenic noise above root-mean-squared pressure 
received levels (RMS SPL) of 120 dB (re 1 [mu]Pa) for continuous (e.g., 
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources (table 4). Generally speaking, Level B 
harassment take estimates based on these behavioral harassment 
thresholds are expected to include any likely takes by temporary 
threshold shift (TTS) as, in most cases, the likelihood of TTS occurs 
at distances from the source less than those at which behavioral 
harassment is likely. TTS of a sufficient degree can manifest as 
behavioral harassment, as reduced hearing sensitivity and the potential 
reduced opportunities to detect important signals (e.g., conspecific 
communication, predators, prey) may result in changes in behavior 
patterns that would not otherwise occur.
    US Wind's construction activities include the use of intermittent 
(e.g., impact pile driving and HRG acoustic sources) sources; 
therefore, the 160 dB re 1 [mu]Pa (RMS) threshold is applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0; 
Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury constituting Level A harassment to five different marine mammal 
groups based on hearing sensitivity as a result of exposure to noise 
from two different types of sources (i.e., impulsive or non-impulsive 
sources). As dual metrics, NMFS considers onset of PTS constituting 
Level A harassment to have occurred when either one of the two metrics 
is exceeded (i.e., metric resulting in the largest isopleth). The 
Project includes the use of impulsive and non-impulsive sources.
    The 2018 thresholds are provided in table 5 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                                              Table 5--Onset of PTS
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds * (received level)
             Hearing group             -------------------------------------------------------------------------
                                                Impulsive                          Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-frequency (LF) cetaceans..........  Cell 1: L,0-pk,flat: 219   Cell 2: LE,,LF,24h: 199 dB.
                                         dB; LE,,LF,24h: 183 dB.
Mid-frequency (MF) cetaceans..........  Cell 3: L,0-pk,flat: 230   Cell 4: LE,,MF,24h: 198 dB.
                                         dB; LE,,MF,24h: 185 dB.
High-frequency (HF) cetaceans.........  Cell 5: L,0-pk,flat: 202   Cell 6: LE,,HF,24h: 173 dB.
                                         dB; LE,,HF,24h: 155 dB.
Phocid pinnipeds (PW) (Underwater)....  Cell 7: L,0-pk.flat: 218   Cell 8: LE,,PW,24h: 201 dB.
                                         dB; LE,,PW,24h: 185 dB.
Otariid pinnipeds (OW) (Underwater)...  Cell 9: L,0-pk,flat: 232   Cell 10: LE,,OW,24h: 219 dB.
                                         dB; LE,,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 (L,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
  exposure level (LE,) has a reference value of 1[mu]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.

Take That May Be Authorized

    In the proposed rule, we discussed the marine mammal density and 
occurrence information, acoustic modeling, and take estimation 
methodologies and results for each of US Wind's specified activities 
and all marine mammal species and stocks. All of this information 
presented in the proposed rule, including multiple tables (e.g., 
densities, acoustic ranges, source characteristics) remains accurate 
and unchanged and is not reproduced here. Below, tables 6 and 7 
identify the maximum annual allowable take and the maximum total 
allowable take across the 5-year effective period of the rule.
    As described in the proposed rule (89 FR 504, January 4, 2024), 
NMFS used the best available science and robust models to consider the 
interaction of marine mammal movement, the environment, and the Project 
activities, in the context of NMFS' acoustic thresholds, to project the 
maximum number of takes that are reasonably expected to occur, by Level 
A harassment and Level B harassment. However, NMFS has also 
acknowledged

[[Page 84691]]

the uncertainty inherent in certain input values (e.g., source levels 
and spectra) and environmental variability present in real-life 
physical and biological systems. The LOA would specify maximum annual 
and 5 year takes that may not be exceeded, by Level A and Level B 
harassment, but would not specify the number of allowable takes by 
activity type, thus allowing for flexibility should the number of takes 
from a specific activity type exceed the number modeled for the 
specific activity type, provided the manner and impacts of those takes 
remain within those considered within the analysis and the total takes 
remain below the annual maximum and 5-year totals.

   Table 6--Maximum Level A Harassment and Level B Harassment Takes for All Activities That May Be Authorized
      During the Construction of the Project and Over the Course of the Five Years Covered by the Rule \1\
----------------------------------------------------------------------------------------------------------------
                                                                 Total take by Level A    Total take by Level B
                     Marine mammal species                       harassment that may be   harassment that may be
                                                                       authorized               authorized
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \2\................................                        0                       10
Fin whale \2\.................................................                        6                       35
Humpback whale................................................                        6                       30
Minke whale...................................................                        9                       58
Sei whale \2\.................................................                        3                        3
Killer whale..................................................                        0                        9
Atlantic spotted dolphin......................................                        0                      168
Coastal bottlenose dolphin....................................                        0                    2,165
Offshore bottlenose dolphin...................................                        0                    2,755
Bottlenose dolphin \3\........................................                        0                      258
Common dolphin................................................                        0                      488
Long-finned pilot whale.......................................                        0                       48
Short-finned pilot whale......................................                        0                       33
Pantropical spotted dolphin...................................                        0                       15
Risso's dolphin...............................................                        0                       70
Rough-toothed dolphin.........................................                        0                       18
Striped dolphin...............................................                        0                      138
Harbor porpoise...............................................                        6                       68
Gray seal \4\.................................................                        0                      496
Harbor seal \4\
Harp seal \4\
----------------------------------------------------------------------------------------------------------------
\1\ The final rule and LOA would be effective from January 1, 2025 through December 31, 2029, however, US Wind
  has not planned activities to occur in 2028 or 2029. As described in table 2, NMFS recognizes the potential
  for activity schedules to shift such that they occur during different timeframes within the five year
  effective period of the rule, including the potential for activities to occur in 2028 and 2029.
\2\ Listed as Endangered under the ESA.
\3\ The total take over 5 years represented here accounts for HRG surveys wherein the take may occur to either
  the Northern migratory coastal stock and/or the offshore stock of bottlenose dolphins.
\4\ Take that may be authorized includes harbor seals, gray seals, and harp seals.

    To inform both the negligible impact analysis and the small numbers 
determination, NMFS also (in addition to the five-year total) assesses 
the maximum number of takes of marine mammals that could occur within 
any given year. For each species or stock, we consider the maximum 
number of Level A harassment takes that could occur and may be 
authorized in any one year, the maximum number of Level B harassment 
takes that could occur and may be authorized in any one year, and the 
sum of those two annual maxima to yield the highest number of total 
takes that could occur in any year (table 7). Table 7 also indicates 
the number of takes authorized relative to the abundance of each stock. 
The takes enumerated here represent daily instances of take, not 
necessarily individual marine mammals taken. One take represents a day 
in which an animal was exposed to noise above the associated harassment 
threshold at least once. Some takes represent a brief exposure above a 
threshold, while in some cases takes could represent a longer, or 
repeated, exposure of one individual animal above a threshold within a 
24-hour period. Whether or not every take assigned to a species 
represents a different individual depends on the daily and seasonal 
movement patterns of the species in the area. For example, activity 
areas with continuous activities (all or nearly every day) overlapping 
known feeding areas (where animals are known to remain for days or 
weeks on end) or areas where species with small home ranges live (e.g., 
some pinnipeds) are more likely to result in repeated takes to some 
individuals. Alternatively, activities that are not occurring on 
consecutive days for the duration of the Project (e.g., foundation 
installation) or occurring in an area where animals are migratory and 
not expected to remain for multiple days, represent circumstances where 
repeat takes of the same individuals are less likely. For example, 100 
takes could represent 100 individuals each taken on one day within the 
year, or it could represent 5 individuals each taken on 20 days within 
the year. The combination of number of individuals each taken and 
number of days on which take would occur would depend upon the 
activity, the presence of biologically important areas in the project 
area, and the movement patterns of the marine mammal species exposed. 
Where information to better contextualize the enumerated takes for a 
given species is available, it is discussed in the Negligible Impact 
Analysis and Determination and/or Small Numbers sections, as 
appropriate.

[[Page 84692]]



 Table 7--Maximum Number of Takes by Level A Harassment and Level B Harassment That May Be Authorized in Any One
                            Year of the Project Relative to Stock Population Size \1\
----------------------------------------------------------------------------------------------------------------
                                                                                                  Maximum take
                                                          Maximum      Maximum                  (instances) as a
          Marine mammal species             NMFS stock     annual       annual      Maximum      percentage  of
                                            abundance     Level A      Level B    annual take  stock  abundance)
                                                         harassment   harassment                    \1\ \2\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \3\ \4\.......          338            0            4            4               1.18
Fin whale \3\ \4\........................        6,802            2           18           20               0.29
Humpback whale \4\.......................        1,396            2           16           18               1.29
Minke whale..............................       21,968            6           41           47               0.21
Sei whale \3\ \4\........................        6,292            1            1            2               0.03
Killer whale \4\.........................          UNK            0            3            3                UNK
Atlantic spotted dolphin \4\.............       39,921            0           69           69               0.17
Coastal bottlenose dolphin \5\...........        6,639            0        1,591        1,591               24.0
Offshore bottlenose dolphin \5\..........       62,851            0        1,768        1,768               2.81
Common dolphin...........................      172,974            0          298          298               0.17
Long-finned pilot whale \4\..............       39,215            0           16           16               0.04
Short-finned pilot whale \4\.............       28,924            0           11           11               0.04
Pantropical spotted dolphin \4\..........        6,593            0            5            5               0.08
Risso's dolphin \4\......................       35,215            0           26           26               0.07
Rough-toothed dolphin \4\................          136            0            6            6               4.41
Striped dolphin \4\......................       67,036            0           46           46               0.07
Harbor porpoise \4\......................       95,543            3           39           42               0.04
Gray seal \6\............................       27,300            0          341          341               1.25
Harbor seal \6\..........................       61,336  ...........  ...........  ...........               0.56
Harp seal \6\............................         7.6M  ...........  ...........  ...........              0.004
----------------------------------------------------------------------------------------------------------------
\1\ Year 2 (2026) represents the most overall impactful year.
\2\ The values in this column represent the assumption that each take that may be authorized would occur to a
  unique individual. Given the scope of planned work, this is highly unlikely for species common to the project
  area (e.g., North Atlantic right whales, humpback whales) such that the actual percentage of the population
  taken is less than the percentages identified here.
\3\ Listed as Endangered under the ESA.
\4\ Take that may be authorized is based on average group size.
\5\ The amount of take identified includes the maximum amount of take that could occur from impact pile driving
  in any given year plus the maximum amount of take from HRG surveys in any given year, assuming all take from
  HRG surveys is allocated to both bottlenose dolphin stocks.
\6\ Assumes 100 percent of the take by Level B harassment is from either the gray seal stock, harbor seal stock,
  or harp seal stock.

Mitigation

    As noted in the Changes from the Proposed to Final Rule section, 
NMFS has added new mitigation requirements and clarified a few others. 
These changes are described in detail in the sections below. Besides 
these changes, the required measures remain the same as those described 
in the proposed rule. However, NMFS has also re-organized and 
simplified the section to avoid full duplication of the specific 
requirements that are fully described in the regulatory text.
    In order to promulgate a rulemaking under section 101(a)(5)(A) of 
the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable adverse impact on the species or stock and its habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance, and on the availability of the species or stock 
for taking for certain subsistence uses (latter not applicable for this 
action). NMFS' regulations require applicants for ITAs to include 
information about the availability and feasibility (e.g., economic and 
technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (e.g., likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented (i.e., the 
probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (i.e., the 
probability if implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider factors such as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous ITAs issued in 
association with in-water construction activities (e.g., soft-start, 
establishing shutdown zones). Additional measures have also been 
incorporated to account for the fact that the construction activities 
would occur offshore. Modeling was performed to estimate harassment 
zones, which were used to inform mitigation measures for the Project's 
activities to minimize Level A harassment and Level B harassment to the 
extent practicable, while providing estimates of the areas within which 
Level B harassment might occur.
    Generally speaking, the mitigation measures considered and required 
here fall into three categories: temporal (i.e., seasonal and daily) 
and spatial work restrictions, real-time measures (e.g., shutdown, 
clearance, and vessel strike avoidance), and noise attenuation/
reduction measures. Temporal and spatial work restrictions are designed 
to

[[Page 84693]]

avoid or minimize operations when marine mammals are concentrated or 
engaged in behaviors that make them more susceptible or make impacts 
more likely, in order to reduce both the number and severity of 
potential takes, and are effective in reducing both chronic (longer-
term) and acute effects. Real-time measures, such as implementation of 
shutdown and clearance zones, as well as vessel strike avoidance 
measures, are intended to reduce the probability or severity of 
harassment by taking steps in real time once a higher-risk scenario is 
identified (e.g., once animals are detected within an impact zone). 
Noise attenuation measures such as bubble curtains are intended to 
reduce the noise at the source, which reduces both acute impacts, as 
well as the contribution to aggregate and cumulative noise that may 
result in longer term chronic impacts.
    Below, we briefly describe the required training, coordination, and 
vessel strike avoidance measures that apply to all activity types, and 
in the following subsections we describe the measures that apply 
specifically to foundation installation and HRG surveys. Details on 
specific requirements can be found in 50 CFR part 217, subpart II, set 
out at the end of this rule.

Training and Coordination

    NMFS requires all US Wind 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 US Wind's compliance 
with the LOA, if issued. Additionally, all relevant personnel and the 
marine mammal species monitoring team(s) are required to participate in 
joint, onboard briefings prior to the beginning of project activities. 
The briefing must be repeated whenever new relevant personnel (e.g., 
new PSOs, construction contractors, relevant crew) join the Project 
before work commences. During this training, US Wind is required to 
instruct all project personnel regarding the authority of the marine 
mammal monitoring team(s). For example, the HRG acoustic equipment 
operator, pile driving personnel, etc., is required to immediately 
comply with any call for a delay or shutdown by the Lead PSO. Any 
disagreement between the Lead PSO and the Project personnel must only 
be discussed after delay or shutdown has occurred. In particular, all 
captains and vessel crew must be trained in marine mammal detection and 
vessel strike avoidance measures to ensure marine mammals are not 
struck by any Project or Project-related vessel.
    Prior to the start of in-water construction activities, vessel 
operators and crews will receive training about marine mammals and 
other protected species known or with the potential to occur in the 
project area, making observations in all weather conditions, and vessel 
strike avoidance measures. In addition, training will include 
information and resources available regarding applicable Federal laws 
and regulations for protected species. US Wind will provide 
documentation of training to NMFS. Since the proposed rule, NMFS has 
added requirements for a description of the training program to be 
provided to NMFS at least 60 days prior to the initial training before 
in-water activities begin and for confirmation of all required training 
to be documented on a training course log sheet and reported to NMFS 
Office of Protected Resources prior to initiating Project activities. 
These measures were added in response to several commenters' concerns 
regarding strengthening mitigation and monitoring measures.

North Atlantic Right Whale Awareness Monitoring

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

Vessel Strike Avoidance Measures

    Both the proposed and this final rule contain numerous vessel 
strike avoidance measures that reduce the risk that a vessel and marine 
mammal could collide. These measures must be followed unless doing so 
would create safety risks as described in the regulatory text. While 
the likelihood of a vessel strike is generally low, they are one of the 
most common ways that marine mammals are seriously injured or killed by 
human activities. Therefore, enhanced mitigation and monitoring 
measures are required to further avoid vessel strikes to the extent 
practicable. While many of these measures are proactive, intended to 
avoid the heavy use of vessels during times when marine mammals of 
particular concern may be in the area, several are reactive and occur 
when a marine mammal is sighted by Project personnel. The mitigation 
requirements are described generally here and in detail in the 
regulatory text at the end of this final rule (50 CFR 217.344(b)). US 
Wind will be required to comply with these measures, except under 
circumstances when doing so would create an imminent and serious threat 
to a person or vessel, or to the extent that a vessel is unable to 
maneuver and, because of the inability to maneuver, the vessel cannot 
comply.
    While underway, US Wind 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 is 
required to immediately reduce speeds to 10 kn (11.5 mph) or less if 
any large whale, or large assemblage of non-delphinid cetaceans is 
observed within 500 m of the vessel. Additionally, all Project vessels, 
regardless of size, must maintain 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). If any of 
these non-North Atlantic right whale marine mammals are sighted, the 
underway vessel must shift its engine to neutral and the engines must 
not be

[[Page 84694]]

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).

            Table 8--Vessel Strike Avoidance Separation Zones
------------------------------------------------------------------------
           Marine mammal species              Vessel separation zone (m)
------------------------------------------------------------------------
North Atlantic right whale.................                          500
Other ESA-listed species and large whales..                          100
Other marine mammals \1\...................                           50
------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera
  Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below.

    All of the Project-related vessels are required to comply with the 
measures within this rulemaking for operating vessels around North 
Atlantic right whales and other marine mammals, as well as any existing 
NMFS vessel speed restrictions for North Atlantic right whales. 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, US Wind is required to monitor the transit 
corridor in real-time with PAM prior to and during transits. To 
maintain awareness of North Atlantic right whale presence in the 
project area, vessel operators, crew members, and the marine mammal 
monitoring team will monitor U.S. Coast Guard VHF Channel 16, 
WhaleAlert, the Right Whale Sighting Advisory System (RWSAS), and the 
PAM system. Any North Atlantic right whale or large whale detection 
will be immediately communicated to PSOs, PAM operators, and all vessel 
captains. All vessels will be equipped with an Automatic Information 
System (AIS) and US Wind must report all Maritime Mobile Service 
Identity (MMSI) numbers to NMFS Office of Protected Resources prior to 
initiating in-water activities. US Wind will submit a Marine Mammal 
Vessel Strike Avoidance Plan for NMFS approval at least 180 days prior 
to commencement of vessel use.
    Compliance with these measures will reduce the likelihood of vessel 
strike to the extent practicable. These measures increase awareness of 
marine mammals in the vicinity of Project vessels and require Project 
vessels to reduce speed when marine mammals are detected (by PSOs, PAM, 
and/or through another source, e.g., RWSAS) and maintain separation 
distances when marine mammals are encountered. While visual monitoring 
is useful, reducing vessel speed is one of the most effective, feasible 
options available to reduce the likelihood of, and effects from, a 
vessel strike. Numerous studies have indicated that slowing the speed 
of vessels reduces the risk of lethal vessel collisions, particularly 
in areas where right whales are abundant and vessel traffic is common 
and otherwise traveling at high speeds (Vanderlaan and Taggart, 2007; 
Conn and Silber, 2013; Van der Hoop et al., 2014; Martin et al., 2015; 
Crum et al., 2019).
    Given the inherent low probability of vessel strike, combined with 
the vessel strike avoidance measures included herein, NMFS considers 
the potential for vessel strike to be unlikely and would not allow take 
from this activity under this final rule.

Seasonal and Daily Restrictions

    Temporal and spatial restrictions in places where marine mammals 
are concentrated, engaged in biologically important behaviors, and/or 
present in sensitive life stages are effective measures for reducing 
the magnitude and severity of human impacts. The temporal restrictions 
required here are built around the protection of North Atlantic right 
whales. Based upon the best scientific information available (Roberts 
et al., 2023), the highest densities of North Atlantic right whales in 
the project area are expected during the months of January through 
April, with an increase in density starting in December. However, North 
Atlantic right whales may be present in the project area throughout the 
year.
    NMFS is requiring seasonal work restrictions to minimize the risk 
of noise exposure to North Atlantic right whales incidental to certain 
specified activities to the extent practicable. These seasonal work 
restrictions are expected to greatly reduce the number of takes of 
North Atlantic right whales. These seasonal restrictions also afford 
protection to other marine mammals that are known to use the project 
area with greater frequency during winter months, including other 
baleen whales. As described previously, no impact pile driving 
activities may occur December 1 through April 30.
    No more than one foundation monopile, four 3-m pin piles for jacket 
foundations, or three 1.8-m pin piles for the Met tower will be 
installed per day. Monopiles must be no larger than 11-m in diameter 
and pin piles must be no larger than 3-m in diameter. For all monopiles 
and pin piles, the minimum amount of hammer energy necessary to 
effectively and safely install and maintain the integrity of the piles 
must be used. No more than one pile may be installed at a given time 
(i.e., concurrent/simultaneous pile driving and drilling may not 
occur).
    US Wind would not initiate pile driving earlier than 1 hour prior 
to civil sunrise or later than 1.5 hours prior to civil sunset, unless 
NMFS approves an Alternative Monitoring Plan as part of the Foundation 
Installation and Marine Mammal Monitoring Plan (i.e., Nighttime 
Monitoring Plan) that reliably demonstrates the efficacy of detecting 
marine mammals at night with its proposed devices. Foundation 
installation will also not be initiated when the minimum visibility 
zones cannot be fully visually monitored, as determined by the lead PSO 
on duty. While monitoring itself is not mitigation, these measures 
contribute to more reliable detection efficiency and animals must be 
detected to trigger mitigative actions which reduce impacts.
    Given the very small harassment zones resulting from HRG surveys 
and that the best available science indicates that any harassment from 
HRG surveys, should a marine mammal be exposed, would manifest as minor 
behavioral harassment only (e.g., potentially some avoidance of the 
vessel), NMFS is not requiring any seasonal and daily restrictions for 
HRG surveys. However US Wind has planned only a limited amount of 
surveys (over 14 days) during daylight within the effective period of 
these regulations.

Noise Attenuation Systems

    US Wind is required to employ noise abatement systems (NAS), also 
known as noise attenuation systems, during all foundation installation 
(i.e., impact pile driving) activities to reduce the sound pressure 
levels that are transmitted through the water in an effort to reduce 
acoustic ranges to the Level A

[[Page 84695]]

harassment and Level B harassment acoustic thresholds and minimize, to 
the extent practicable, any acoustic impacts resulting from these 
activities. US Wind is required to use at least two NASs to ensure that 
measured sound levels do not exceed the levels modeled for a 10-dB 
sound level reduction for foundation installation, which is likely to 
include a double big bubble curtain or a double big bubble curtain 
combined with other NAS (e.g., hydro-sound damper, or an AdBm Helmholz 
resonator), as well as the adjustment of operational protocols to 
minimize noise levels. As part of adaptive management, should the 
research and development phase of newer systems demonstrate 
effectiveness, US Wind may submit data on the effectiveness of these 
systems and request approval from NMFS to use them during foundation 
installation activities.
    Two categories of NASs exist: primary and secondary. A primary NAS 
would be used to reduce the level of noise produced by foundation 
installation activities at the source, typically through adjustments to 
the equipment (e.g., hammer strike parameters). Primary NASs are still 
evolving and will be considered for use during mitigation efforts when 
the NAS has been demonstrated as effective in commercial projects. 
However, as primary NASs are not fully effective at eliminating noise, 
a secondary NAS would be employed. The secondary NAS is a device or 
group of devices that would reduce noise as it was transmitted through 
the water away from the pile, typically through a physical barrier that 
would reflect or absorb sound waves and therefore, reduce the distance 
the higher energy sound propagates through the water column. Together, 
these systems must reduce noise levels to those not exceeding modeled 
ranges to Level A harassment and Level B harassment isopleths 
corresponding to those modeled assuming 10-dB sound attenuation, 
pending results of SFV (see the Sound Field Verification section below 
and 50 CFR part 217--Regulations Governing The Taking And Importing Of 
Marine Mammals).
    Noise abatement systems, such as bubble curtains, are used to 
decrease the sound levels radiated from a source. Bubbles create a 
local impedance change that acts as a barrier to sound transmission. 
The size of the bubbles determines their effective frequency band, with 
larger bubbles needed for lower frequencies. There are a variety of 
bubble curtain systems, confined or unconfined bubbles, and some with 
encapsulated bubbles or panels. Attenuation levels also vary by type of 
system, frequency band, and location. Small bubble curtains have been 
measured to reduce sound levels but effective attenuation is highly 
dependent on depth of water, current, and configuration and operation 
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann, 
2013). Bubble curtains vary in terms of the sizes of the bubbles and 
those with larger bubbles tend to perform a bit better and more 
reliably, particularly when deployed with two separate rings (Bellmann, 
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016). 
Encapsulated bubble systems (e.g., Hydro Sound Dampers (HSDs)), can be 
effective within their targeted frequency ranges (e.g., 100-800 Hz), 
and when used in conjunction with a bubble curtain appear to create the 
greatest attenuation. The literature presents a wide array of observed 
attenuation results for bubble curtains. The variability in attenuation 
levels is the result of variation in design as well as differences in 
site conditions and difficulty in properly installing and operating in-
water attenuation devices. D[auml]hne et al. (2017) found that single 
bubble curtains that reduce sound levels by 7 to 10 dB reduced the 
overall sound level by approximately 12 dB when combined as a double 
bubble curtain for 6-m steel monopiles in the North Sea. During 
installation of monopiles (consisting of approximately 8-m in diameter) 
for more than 150 WTGs in comparable water depths (>25 m) and 
conditions in Europe indicate that attenuation of 10 dB is readily 
achieved (Bellmann, 2019; Bellmann et al., 2020) using single bubble 
curtains for noise attenuation.
    When a double big bubble curtain is used (noting a single bubble 
curtain is not allowed), US Wind is required to maintain numerous 
operational performance standards. These standards are defined in the 
regulatory text at the end of this rule, and include, but are not 
limited to, construction contractors must train personnel in the proper 
balancing of airflow to the bubble ring and US Wind must submit a 
performance test and maintenance report to NMFS. Corrections to the 
attenuation devices are to be carried out prior to impact pile driving. 
In addition, a full maintenance check (e.g., manually clearing holes) 
must occur prior to each pile being installed. If US Wind uses a noise 
mitigation device in addition to a double big bubble curtain, similar 
quality control measures are required. Should the research and 
development phase of newer systems demonstrate effectiveness, as part 
of adaptive management, US Wind may submit data on the effectiveness of 
these systems and request approval from NMFS to use them during 
foundation installation activities.
    US Wind is required to submit an SFV plan to NMFS for approval at 
least 180 days prior to installing foundations. They are also required 
to submit interim and final SFV data results to NMFS and make 
corrections to the NASs in the case that any SFV measurements 
demonstrate noise levels are above those modeled assuming 10 dB. These 
frequent and immediate reports allow NMFS to better understand the 
sound fields to which marine mammals are being exposed and require 
immediate corrective action should they be misaligned with anticipated 
noise levels within our analysis.
    Noise abatement devices are not required during HRG surveys as they 
cannot practicably be employed around a moving survey ship, but US Wind 
is required to make efforts to minimize source levels by using the 
lowest energy settings on equipment that has the potential to result in 
harassment of marine mammals (e.g., boomers) and turning off equipment 
when not actively surveying. Overall, minimizing the amount and 
duration of noise in the ocean from any of the Project's activities 
through use of all means necessary (e.g., noise abatement, turning off 
power) will effect the least practicable adverse impact on marine 
mammals.

Clearance and Shutdown Zones

    NMFS requires the establishment of both clearance and, where 
technically feasible, shutdown zones during Project activities that 
have the potential to result in harassment of marine mammals. The 
purpose of ``clearance'' of a particular zone is to minimize potential 
instances of auditory injury and more severe behavioral disturbances by 
delaying the commencement of an activity if marine mammals are near the 
activity. The purpose of a shutdown is to prevent a specific acute 
impact, such as auditory injury or severe behavioral disturbance of 
sensitive species, by halting the activity.
    All relevant clearance and shutdown zones during Project activities 
will be monitored by NMFS-approved PSOs and PAM operators as described 
in the regulatory text at the end of this rule. At least one PAM 
operator must review data from at least 24 hours prior to foundation 
installation, and must actively monitor hydrophones for 60 minutes 
prior to commencement of these activities. Any North Atlantic right 
whale sighting at any distance by foundation installation PSOs, or

[[Page 84696]]

acoustically detected within the PAM monitoring zone (10 km), triggers 
a delay to commencing pile driving and shutdown. Any large whale 
sighted by a PSO or acoustically detected by a PAM operator that cannot 
be identified as a non-North Atlantic right whale must be treated as if 
it were a North Atlantic right whale.
    Prior to the start of certain specified activities (i.e., 
foundation installation, including soft-start, and HRG surveys), US 
Wind must ensure designated areas (i.e., clearance zones as provided in 
tables 24 and 25) are clear of marine mammals prior to commencing 
activities to minimize the potential for and degree of harassment. For 
foundation installation, PSOs must visually monitor clearance zones for 
marine mammals for a minimum of 60 minutes prior to the activity, where 
the zone must be confirmed free of marine mammals at least 30 minutes 
directly prior to commencing these activities. During this period, the 
clearance zones will be monitored by both PSOs and a PAM operator. If a 
marine mammal is observed within a clearance zone during the clearance 
period, the activity will be delayed and may not begin until the 
animal(s) has been observed exiting its respective zone, or until an 
additional time period has elapsed with no further sightings (i.e., 15 
minutes for small odontocetes and pinnipeds and 30 minutes for all 
other species). In addition, foundation installation will be delayed 
upon a confirmed PAM detection of a North Atlantic right whale if the 
PAM detection is confirmed to have been located within the North 
Atlantic right whale PAM clearance zone (10,000 m). Any large whale 
sighted by a PSO that cannot be identified to species must be treated 
as if it were a North Atlantic right whale for the purposes of 
mitigation. PSOs and PAM operators must continue monitoring throughout 
the duration of foundation installation and for 30 minutes post-
completion of the activity.
    Clearance and shutdown zones have been developed in consideration 
of modeled distances to relevant PTS thresholds with respect to 
minimizing the potential for take by Level A harassment. The clearance 
and shutdown zones for North Atlantic right whales during monopile, 
jacket foundation, and Met tower foundation installation are visual 
observations at any distance by PSOs or any acoustic detection within 
the PAM monitoring zone (10 km; table 24). For North Atlantic right 
whales, there is an additional requirement that the clearance zone may 
only be declared clear if no confirmed North Atlantic right whale 
acoustic detections (in addition to visual) have occurred during the 
60-minute monitoring period. The visual clearance zone for other large 
whales from monopile installation is equal to the modeled maximum 
R95 percent distance to the Level B harassment threshold 
(5,250 m). The clearance zone for other large whales from 3-m pin pile 
installation is equal to the modeled maximum R95 percent 
distance to the Level A harassment threshold (1,400 m). The clearance 
zone for other large whales from 1.8-m pin pile installation is equal 
to twice the modeled maximum R95 percent distance to the 
Level B harassment threshold given the very small Level B harassment 
zone (100 m), which could be encompassed by the bubble curtains. The 
clearance zone for non-large whales (i.e., delphinids and pilot whales, 
harbor porpoises, and seals) from monopile and 3-m pin pile 
installation is equal to double the modeled maximum 
R95 percent distances to the Level A harassment threshold 
for harbor porpoise (the most sensitive species). The clearance zone 
for 1.8-m pin pile installation is equal to double the modeled maximum 
R95 percent distance to the Level B harassment threshold 
given Level A harassment thresholds were not exceeded for this activity 
(i.e., 0 m).
    Once an activity begins, any marine mammal entering their 
respective shutdown zone would trigger the activity to cease. In the 
case of foundation installation, the shutdown requirement may be waived 
if it is not practicable to shutdown the equipment due to imminent risk 
of injury or loss of life to an individual, risk of damage to a vessel 
that creates risk of injury or loss of life for individuals, or where 
the lead engineer determines there is pile refusal or pile instability. 
In situations when shutdown is called for during impact pile driving, 
but US Wind determines shutdown is not practicable due to 
aforementioned emergency reasons, reduced hammer energy must be 
implemented when the lead engineer determines it is practicable. 
Specifically, pile refusal or pile instability could result in not 
being able to shut down pile driving immediately. Pile refusal occurs 
when the pile driving sensors indicate the pile is approaching refusal 
and a shut-down would lead to a stuck pile which then poses an imminent 
risk of injury or loss of life to an individual, or risk of damage to a 
vessel that creates risk for individuals. Pile instability occurs when 
the pile is unstable and unable to stay standing if the piling vessel 
were to ``let go''. During these periods of instability, the lead 
engineer may determine a shut-down is not feasible because the shut-
down combined with impending weather conditions may require the piling 
vessel to ``let go'', which then poses an imminent risk of injury or 
loss of life to an individual, or risk of damage to a vessel that 
creates risk for individuals. US Wind must document and report to NMFS 
all cases where the emergency exemption is taken.
    After shutdown, foundation installation may be reinitiated once all 
clearance zones are clear of marine mammals for the minimum species-
specific periods, or, if required to maintain pile stability, at which 
time the lowest hammer energy must be used to maintain stability. If 
foundation installation has been shut down due to the presence of a 
North Atlantic right whale, pile driving must not restart until the 
North Atlantic right whale has neither been visually or acoustically 
detected by PSOs and PAM operators for 30 minutes. Upon re-starting 
pile driving, soft-start protocols must be followed if pile driving has 
ceased for 30 minutes or longer.
    The clearance and shutdown zone sizes vary by species and are shown 
in tables 24 and 25. US Wind is allowed to request modification to 
these zone sizes pending results of SFV (see the regulatory text at the 
end of this rule). Any changes to zone size would be part of adaptive 
management and would require NMFS' approval. The 10 km PAM monitoring 
zone for North Atlantic right whales has been carried forward from the 
proposed rule into this final rule. A 10-km distance is a reasonable 
distance for a PAM system to monitor; thus, 10 km was added as the 
requirement for the PAM monitoring zone.
    In addition to the clearance and shutdown zones that would be 
monitored both visually and acoustically, NMFS is requiring US Wind to 
establish a minimum visibility zone during foundation installation 
activities to ensure both visual and acoustic methods are used in 
tandem to detect marine mammals resulting in maximum detection 
capability. The minimum visibility zone is defined as the area over 
which PSOs must be able to visually detect marine mammals and must be 
visible for the duration of the 60-minute clearance period. This zone 
would extend from the location of the pile being driven out to 2,900 m 
(9,514 ft) for monopile installation, 1,400 m for 3-m pin pile 
installation, and 200 m for 1.8-m pin pile installation (table 24). 
During monopile and 3-m pin pile installation, the minimum visibility 
zone is equal to the modeled maximum

[[Page 84697]]

R95 percent distances to the Level A harassment threshold 
for low-frequency cetaceans. The minimum visibility zone for 1.8-m pin 
piles is equal to the clearance zone, which is double the modeled 
maximum R95 percent distance to the Level B harassment 
threshold (100 m) and four times the modeled maximum 
R95 percent distance to the Level A harassment threshold (50 
m) for low-frequency cetaceans. NMFS increased the 1.8-m pin pile 
minimum visibility zone given the very small zone sizes from this short 
(3 piles total) activity.
    For HRG surveys, there are no mitigation measures prescribed for 
sound sources operating at frequencies greater than 180 kHz, as these 
would be expected to fall outside of marine mammal hearing ranges and 
would not result in harassment. However, all HRG survey vessels would 
be subject to the aforementioned vessel strike avoidance measures 
described earlier in this section. Furthermore, due to the frequency 
range and characteristics of some of the sound sources associated with 
lesser impacts, shutdown, clearance, and ramp-up procedures are not 
planned to be conducted during HRG surveys utilizing only non-impulsive 
sources (e.g., other parametric sub-bottom profilers). Shutdown, 
clearance, and ramp-up procedures are planned to be conducted during 
HRG surveys utilizing SBPs and other non-parametric sub-bottom 
profilers (planned survey equipment that may result in take of marine 
mammals are presented in table 3 of the proposed rule (89 FR 504, 
January 4, 2024)). PAM would not be required during HRG surveys. While 
NMFS agrees that PAM can be an important tool for augmenting detection 
capabilities in certain circumstances, its utility in further reducing 
impacts during HRG survey activities is limited.
    US Wind will be required to implement a 30-minute clearance period 
of the clearance zones (table 25) immediately prior to the commencing 
of the survey, or when there is more than a 30-minute break in survey 
activities and PSOs have not been actively monitoring. If a marine 
mammal is observed within a clearance zone during the clearance period, 
ramp up (described below) may not begin until the animal(s) have been 
observed voluntarily exiting its respective clearance zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and seals, and 30 minutes for all other 
species). When the clearance process has begun in conditions with good 
visibility, including via the use of night vision equipment (i.e., 
infrared (IR)/thermal camera), and the Lead PSO has determined that the 
clearance zones are clear of marine mammals, survey operations would be 
allowed to commence (i.e., no delay is required) despite periods of 
inclement weather and/or loss of daylight.
    Once the survey has commenced, US Wind would be required to shut 
down SBPs if a marine mammal enters a respective shutdown zone (table 
25). In cases where the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations would be allowed to 
continue (i.e., no shutdown is required) so long as no marine mammals 
have been detected. The use of SBPs will not be allowed to commence or 
resume until the animal(s) has been confirmed to have left the shutdown 
zone or until a full 15 minutes (for small odontocetes and seals) or 30 
minutes (for all other marine mammals) have elapsed with no further 
sighting. Any large whale sighted by a PSO within 1,000 m of the SBPs 
that cannot be identified as a non-North Atlantic right whale would be 
treated as if it were a North Atlantic right whale for the purposes of 
mitigation implementation.

        Table 9--Minimum Visibility, Clearance, Shutdown, and Level B Harassment Zones During Impact Pile Driving, Assuming 10 dB of Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       North Atlantic right                             Delphinids and pilot
          Monitoring zone                     whales              Other large whales           whales           Harbor porpoises            Seals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum visibility zone \1\.......                                                   Monopiles: 2,900 m.
                                                                                   3-m pin piles: 1,400 m.
                                                                                   1.8-m pin piles: 200 m.
                                   ---------------------------------------------------------------------------------------------------------------------
Clearance zone....................  Any distance (visual) from  Monopiles: 5,250 m...                          Monopiles: 500 m.
                                     the pile driving location  3-m pin piles: 1,400
                                     or within PAM Monitoring    m..
                                     Zone.
                                                                1.8-m pin piles: 200               3-m pin piles, 1.8-m pin piles: 200 m.\3\
                                                                 m.\2\
                                   ---------------------------------------------------------------------------------------------------------------------
Shutdown zone.....................  Any distance (visual) from  Monopiles: 2,900.....                          Monopiles: 250 m.
                                     the pile driving location  3-m pin piles: 1,400
                                     or within PAM Monitoring    m..
                                     Zone.
                                                                1.8-m Pin piles: 100               3-m pin piles, 1.8-m pin piles: 100 m.\5\
                                                                 m.\4\
                                   ---------------------------------------------------------------------------------------------------------------------
PAM monitoring zone \6\...........                                                        10,000 m.
                                   ---------------------------------------------------------------------------------------------------------------------
Level B Harassment (Acoustic......                                                   Monopiles: 5,250 m.
  Range, R95%)                                                                      3-m pin piles: 500 m.
                                                                                   1.8-m pin piles: 100 m.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The minimum visibility zone is equal to the modeled maximum R95 percent distances to the Level A harassment threshold for low-frequency cetaceans
  for monopiles and 3-m pin piles. The minimum visibility zone for 1.8-m pin piles is equal to the clearance zone which is double the modeled maximum
  R95 percent distance to the Level B harassment threshold (100 m) and four times the modeled maximum R95 percent distance to the Level A harassment
  threshold (50 m) for low frequency cetaceans. NMFS increased the 1.8 m pile minimum visibility zone given the very small zone sizes from this short (3
  piles total) activity.
\2\ The clearance zone for other large whales from monopile installation is equal to the modeled maximum R95 percent distance to the Level B harassment
  threshold (5,250 m). The clearance zone for other large whales from 3-m pin pile installation is equal to the modeled maximum R95 percent distance to
  the Level A harassment threshold (1,400 m) given the Level B harassment zone is less than this distance (500 m). The clearance zone for other large
  whales from 1.8-m pin pile installation is equal to twice the modeled maximum R95 percent distance to the Level B harassment threshold given the very
  small Level B harassment zone (100 m) which could be encompassed by the bubble curtains.
\3\ The clearance zone for non-large whales (i.e., delphinids and pilot whales, harbor porpoises, and seals) from monopile and 3-m pin pile installation
  is equal to double the modeled maximum R95 percent distance to the Level A harassment threshold for harbor porpoise (the most sensitive species). The
  clearance zone for 1.8-m pin pile installation is equal to double the modeled maximum R95 percent distance to the Level B harassment threshold given
  Level A harassment thresholds were not exceeded for this activity (i.e., 0 m). US Wind requested the clearance zone for non-large whales be identical
  for PSO implementation ease.
\4\ The shutdown zones for other large whales from monopiles and 3-m pin pile installation are equal to the modeled maximum R95 percent distances to the
  Level A harassment threshold for low-frequency cetaceans. The shutdown zone for other large whales from 1.8-m pin piles is equal to two times the
  modeled maximum R 95 percent distance to the Level A harassment threshold for low-frequency cetaceans.
\5\ The shutdown zones for non large whales from monopile and 3-m pin pile installation are equal to the modeled maximum R95 percent distance to the
  Level A harassment threshold for harbor porpoise (the most sensitive species). The shutdown zone for non large whales from 1.8-m pin pile installation
  is equal to the modeled maximum R95 percent distance to the Level B harassment threshold, given the Level A harassment thresholds were not exceeded
  for this activity (i.e., 0 m). US Wind requested the shutdown zone for non large whales be identical for PSO implementation ease.

[[Page 84698]]

 
\6\ The PAM system must be capable of detecting baleen whales at 10,000 m during pile driving. The system should also be designed to detect other marine
  mammals; however, it is not required these other species be detected out to 10,000 m given higher frequency calls and echolocation clicks are not
  typically detectable at large distances.


            Table 10--HRG Survey Clearance and Shutdown Zones
------------------------------------------------------------------------
                                      Clearance zone
       Marine mammal species              (m)\2\       Shutdown zone (m)
------------------------------------------------------------------------
North Atlantic right whale........                500                500
Other ESA-listed species (i.e.,                   500                100
 fin, sei, sperm whale)...........
Other marine mammals \1\..........                200                100
------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera
  Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below.

    In addition, NMFS has included a measure requiring US Wind to 
shutdown pile driving or HRG surveys 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. 
US Wind would be required to shut down pile driving activities 
according to the measure described in the regulatory text.

Soft-Start/Ramp Up

    The use of a soft-start or ramp-up procedure is believed to provide 
additional protection to marine mammals by warning them or providing 
them with a chance to leave the area, prior to the hammer or HRG 
equipment operating at full capacity. Soft-start typically involves 
initiating hammer operation at a reduced energy level relative to full 
operating capacity followed by a waiting period. Typically, NMFS 
requires a soft-start procedure of the applicant performing four to six 
strikes per minute at 10 to 20 percent of the maximum hammer energy, 
for a minimum of 20 minutes. For foundation installation, NMFS notes 
that it is difficult to specify a reduction in energy for any given 
hammer because of variation across drivers and installation conditions. 
The final methodology will be developed by US Wind, in consultation 
with NMFS, considering final design details including site-specific 
soil properties and other considerations. A general soft-start 
requirement for impact pile driving is incorporated into the 
regulations. HRG survey operators are required to ramp-up sources when 
the acoustic sources are used unless the equipment operates on a binary 
on/off switch. The ramp-up would involve starting from the smallest 
setting and gradually increasing to the operating level over a period 
of approximately 30 minutes.
    Soft-start and ramp-up will be required at the beginning of each 
day's activity and at any time following a cessation of activity of 30 
minutes or longer. Prior to soft-start or ramp-up beginning, the 
operator must receive confirmation from the PSO that the clearance zone 
is clear of any marine mammals.

Fishery Monitoring Surveys

    While the likelihood of US Wind's fishery monitoring surveys 
impacting marine mammals is minimal, NMFS requires US Wind to adhere to 
gear and vessel mitigation measures to reduce potential impacts to the 
extent practicable. In addition, all crew undertaking the fishery 
monitoring survey activities are required to receive protected species 
identification training prior to activities occurring and attend the 
aforementioned onboarding training. The specific requirements that NMFS 
has set for the fishery monitoring surveys can be found in the 
regulatory text at the end of this rule.
    Based on our evaluation of the mitigation measures, as well as 
other measures considered by NMFS, NMFS has determined that these 
measures will provide the means of affecting the least practicable 
adverse impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

    As noted in the Changes from the Proposed to Final Rule section, we 
have added, modified, or clarified a number of monitoring and reporting 
measures since the proposed rule. These changes are described in detail 
below. Since the proposed rule, we have clarified the number of 
platforms for PSOs to be a total of three platforms, including the pile 
driving vessel and two PSO support vessels, as the number of platforms 
was not specified in the proposed rule. In addition, we have added 
specific requirements for SFV monitoring.
    In order to promulgate a rulemaking for an activity, section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA 
implementing regulations at 50 CFR 216.104(a)(13) indicate that 
requests for authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (i.e., individual or cumulative, acute 
or chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (i.e., behavioral or 
physiological) to acoustic stressors (i.e., acute, chronic, or 
cumulative), other

[[Page 84699]]

stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
     Mitigation and monitoring effectiveness.
    Separately, monitoring is also regularly used to support mitigation 
implementation (i.e., mitigation monitoring) and monitoring plans 
typically include measures that both support mitigation implementation 
and increase our understanding of the impacts of the activity on marine 
mammals.
    During the planned activities, visual monitoring by NMFS-approved 
PSOs will be conducted before, during, and after all impact pile 
driving and HRG surveys. PAM will also be conducted during impact pile 
driving. Visual observations and acoustic detections will be used to 
support the activity-specific mitigation measures (e.g., clearance 
zones). To increase understanding of the impacts of the activity on 
marine mammals, PSOs must record all incidents of marine mammal 
occurrence at any distance from the piling locations, near the HRG 
acoustic sources. PSOs will document all behaviors and behavioral 
changes, at any distance from the foundation installation locations 
(i.e., location of impact pile driving) and near the HRG acoustic 
sources. PSOs will document all behaviors and behavioral changes, in 
concert with distance from an acoustic source. Further, SFV during 
foundation installation and unexploded ordinance (UXO)/munition of 
explosive concern (MEC) detonation is required to ensure compliance and 
that the potential impacts are within the bounds of that analyzed. The 
required monitoring, including PSO and PAM Operator qualifications, is 
described below, beginning with PSO measures that are applicable to all 
the aforementioned activities and PAM (for specific activities).

Protected Species Observer and PAM Operator Requirements

    US Wind is required to employ NMFS-approved PSOs and PAM operators. 
PSOs are trained professionals who are tasked with visually monitoring 
for marine mammals during pile driving and HRG surveys. The primary 
purpose of a PSO is to carry out the monitoring, collect data, and, 
when appropriate, call for the implementation of mitigation measures. 
In addition to visual observations, NMFS requires US Wind to conduct 
PAM by PAM operators during impact pile driving and vessel transit.
    The inclusion of PAM, which would be conducted by NMFS-approved PAM 
operators, following standardized measurement, processing methods, 
reporting metrics, and metadata standards for offshore wind, combined 
with visual data collection, is a valuable way to provide the most 
accurate record of species presence as possible. These two monitoring 
methods are well understood to provide best results when combined 
together (e.g., Barlow and Taylor, 2005; Clark et al., 2010; Gerrodette 
et al., 2011; Van Parijs et al., 2021). Acoustic monitoring, in 
addition to visual monitoring, increases the likelihood of detecting 
marine mammals within the shutdown and clearance zones of Project 
activities, which when applied in combination of required shutdowns 
helps to further reduce the risk of marine mammals being exposed to 
sound levels that could otherwise result in acoustic injury or more 
intense behavioral harassment.
    The exact configuration and number of PAM systems depends on the 
size of the zone(s) being monitored, the amount of noise expected in 
the area, and the characteristics of the signals being monitored. More 
closely spaced hydrophones would allow for more directionality, and 
perhaps, range to the vocalizing marine mammals; although, this 
approach would add additional costs and greater levels of complexity to 
the Project. Larger baleen cetacean species (i.e., mysticetes), which 
produce loud and lower-frequency vocalizations, may be able to be heard 
with fewer hydrophones spaced at greater distances. However, smaller 
cetaceans (such as mid-frequency delphinids 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). As there are no ``perfect fit'' 
single-optimal-array configurations, NMFS will consider and approve 
these set-ups, as appropriate, on a case-by-case basis during the PAM 
Plan review. Specifically, US Wind will be required to provide a plan 
that describes an optimal configuration for collecting the required 
marine mammal data, based on the real-world circumstances in the 
project area, recognizing that we will continue to learn more as 
monitoring results from other wind projects are submitted.
    NMFS does not formally administer any PSO or PAM operator training 
program or endorse specific providers but will approve PSOs and PAM 
operators that have successfully completed courses that meet the 
curriculum and trainer requirements referenced below and further 
specified in the regulatory text at the end of this rule. PSOs can act 
as PAM operators or visual PSOs (but not simultaneously) as long as 
they demonstrate that their training and experience are sufficient to 
perform each task.
    NMFS will provide PSO and PAM operator approvals in the context of 
the need to ensure that PSOs and PAM operators have the necessary 
training and/or experience to carry out their duties competently. NMFS 
may approve PSOs as conditional or unconditional. Conditional approval 
may be given to one who is trained but has not yet attained the 
requisite experience. Unconditional approval is given to one who is 
trained and has attained the necessary experience. The specific 
requirements for conditional and unconditional approval can be found in 
the regulatory text at the end of this rule (see Sec.  217.345(a)(6).
    Conditionally-approved PSOs will be paired with an unconditionally-
approved PSO to ensure that the quality of marine mammal observations 
and data recording is kept consistent. Additionally, activities 
requiring PSO and/or PAM operator monitoring must have a lead on duty. 
The visual PSO field team, in conjunction with the PAM team, (i.e., 
together, the marine mammal monitoring team), would have a lead member 
(designated as the ``Lead PSO'' or ``Lead PAM operator'') who would be 
required to meet the unconditional approval standard.
    Although PSOs and PAM operators must be approved by NMFS, third-
party observer providers and/or companies seeking PSO and PAM operator 
staffing should expect that those having satisfactorily completed 
acceptable training and with the requisite experience (if required) 
will be quickly approved. US Wind is required to request PSO and PAM 
operator approvals 60 days prior to those personnel commencing work. An 
initial list of previously approved PSO and PAM operators must be 
submitted by US Wind at least 30 days prior to the start of the 
Project. Should US Wind require additional PSOs or PAM operators 
throughout the Project, US Wind must submit a subsequent list of pre-
approved PSOs and PAM operators to NMFS at least 15 days prior to 
planned use of that PSO or PAM operator. A PSO may be trained and/or

[[Page 84700]]

experienced as both a PSO and PAM operator and may perform either duty, 
pursuant to scheduling requirements (and vice versa).
    A minimum number of PSOs would be required to actively observe for 
the presence of marine mammals during certain project activities, 
generally speaking, with more PSOs being required as the mitigation 
zone sizes increase. A minimum number of PAM operators would be 
required to actively monitor for the presence of marine mammals during 
foundation installation. The types of equipment required (e.g., big 
eyes on the pile driving vessel) are also designed to increase marine 
mammal detection capabilities. Specifics on these types of requirements 
can be found in the regulations at the end of this rule.
    At least three PSOs must be on duty at a time on the foundation 
installation vessel/platform. A minimum of three PSOs must be active on 
each of at least two dedicated PSO vessels. US Wind must employ a 
minimum of three PSO platforms, including the pile driving platform and 
at least two PSO vessels. This requirement has been added since the 
proposed rule in response to a comment from the Commission to clarify 
the number of required PSO platforms during pile driving activity. The 
vessel must be located at the best vantage point to observe and 
document marine mammal sightings in proximity to the clearance and, if 
applicable, shutdown zones. At least one PAM operator per acoustic data 
stream (equivalent to the number of acoustic buoys) must be on-duty and 
actively monitoring per platform during foundation installation.
    At least one PSO must be on-duty during HRG surveys conducted 
during daylight hours; and at least two PSOs must be on-duty during HRG 
surveys conducted during nighttime.
    As part of their monitoring duties, PSOs and PAM operators are 
responsible for data collection. The data collected by PSO and PAM 
operators and subsequent analysis provide the necessary information to 
inform an estimate of the amount of take that occurred during the 
Project, better understand the impacts of the Project on marine 
mammals, address the effectiveness of monitoring and mitigation 
measures, and to adaptively manage activities and mitigation in the 
future. Data reported includes information on marine mammal sightings 
(e.g., numbers of animals and their behavior), activity occurring at 
time of sighting, monitoring conditions, and if mitigative actions were 
taken. Specific data collection requirements are contained within the 
regulations at the end of this rule.
    US Wind is required to submit a Foundation Installation Monitoring 
Plan and a PAM Plan to NMFS 180 days in advance of foundation 
installation activities. The Plan must include details regarding PSO 
and PAM monitoring protocols and equipment proposed for use, as 
described in the regulatory text at the end of this rule. NMFS must 
approve the plan prior to foundation installation activities 
commencing. Specific details on NMFS' PSO or PAM operator 
qualifications and requirements can be found in 50 CFR part 217, 
subpart II, set out at the end of this rule. Additional information can 
be found in US Wind Marine Mammal Monitoring and Mitigation Plan 
(appendix B) on the NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-wind-inc-construction-and-operation-maryland-offshore-wind.

Sound Field Verification

    Previously in the proposed rule, US Wind had to conduct SFV 
measurements during all pile driving activities associated with the 
installation of, at minimum, the first three monopile foundations. SFV 
measurements must continue until at least three consecutive piles 
demonstrate distances to thresholds that are at or below those modeled 
assuming 10 dB of attenuation. Subsequent SFV measurements are also 
required should larger piles be installed or additional piles be driven 
that are anticipated to produce longer distances to harassment 
isopleths than those previously measured (e.g., higher hammer energy, 
greater number of strikes, etc.).
    For the final rule, NMFS has expanded this requirement for SFV 
during foundation installation to align with the BiOp. At minimum, 
thorough SFV must be conducted in: for each construction year, for the 
first three monopiles installed and the first three full jacket 
foundations (all piles) installed. While pile driving is prohibited 
from December-April, if pile driving is required and must occur in 
December due to unforeseen circumstances, thorough SFV must be 
conducted on the first monopile and first jacket foundation (all piles) 
installed in December (winter sound speed profile). Thorough SFV must 
also be conducted for the first foundation for any foundation scenarios 
that were modeled for the exposure analysis but do not fall into one of 
the scenarios described above. During thorough SFV, installation of the 
next foundation (of the same type/foundation method) may not proceed 
until US Wind has reviewed the initial results from the thorough SFV 
and determined that there were no exceedances of any distances to the 
identified thresholds based on modeling assuming 10 dB of attenuation.
    If any of the thorough SFV measurements from any pile indicate that 
the distance to any isopleth of concern for any species is greater than 
those modeled assuming 10 dB of attenuation, US Wind must notify NMFS 
within 24 hours of reviewing the thorough SFV measurements and must 
implement the measures described in detail in the regulatory text at 
the end of this final rule for the next pile of the same type/
installation methodology, as applicable.
    Abbreviated SFV monitoring must be performed on all foundation 
installations for which the thorough SFV monitoring described above is 
not conducted. In addition, SFV measurements must be conducted upon 
commencement of turbine operations to estimate turbine operational 
source levels, in accordance with a NMFS-approved Foundation 
Installation Pile Driving SFV Plan. The measurements and reporting 
associated with SFV can be found in the regulatory text at the end of 
this rule. The requirements are extensive to ensure monitoring is 
conducted appropriately and the reporting frequency is such that US 
Wind is required to make adjustments quickly (e.g., ensure bubble 
curtain hose maintenance, check bubble curtain air pressure supply, add 
additional sound attenuation, etc.) to ensure marine mammals are not 
experiencing noise levels above those considered in this analysis. For 
recommended SFV protocols for impact pile driving, please consult 
International Organization for Standardization (ISO) 18406, 
``Underwater acoustics--Measurement of radiated underwater sound from 
percussive pile driving'' (2017).

Reporting

    Prior to any construction activities occurring, US Wind will 
provide a report to NMFS Office of Protected Resources that 
demonstrates that all US Wind personnel, including the vessel crews, 
vessel captains, PSOs, and PAM operators, have completed all required 
trainings.
    NMFS will require standardized and frequent reporting from US Wind 
during the life of the regulations and the LOA. All data collected 
relating to the Project will be recorded using industry-standard 
software (e.g., Mysticetus or a similar software) installed on field 
laptops and/or tablets. US Wind is

[[Page 84701]]

required to submit weekly, monthly, annual, situational, and final 
reports. The specifics of what we require to be reported can be found 
in the regulatory text at the end of this final rule.
    Weekly Report--During foundation installation activities, US Wind 
would be required to compile and submit weekly marine mammal monitoring 
reports for foundation installation activities to NMFS Office of 
Protected Resources that document the daily start and stop of all pile-
driving activities, the start and stop of associated observation 
periods by PSOs, details on the deployment of PSOs, a record of all 
detections of marine mammals (acoustic and visual), any mitigation 
actions (or if mitigation actions could not be taken, provide reasons 
why), and details on the noise abatement system(s) (e.g., system type, 
distance deployed from the pile, bubble rate, etc.), and abbreviated 
SFV results. Weekly reports will be due on Wednesday for the previous 
week (Sunday to Saturday). The weekly reports are also required to 
identify which turbines become operational and when (a map must be 
provided). Once all foundation pile installation is complete, weekly 
reports would no longer be required.
    Monthly Report--US Wind is required to compile and submit monthly 
reports to NMFS Office of Protected Resources that include a summary of 
all information in the weekly reports, including Project activities 
carried out in the previous month, vessel transits (number, type of 
vessel, and route), number of piles installed, all detections of marine 
mammals, and any mitigative actions taken. The monthly report would 
identify which turbines become operational and when, and a map must be 
provided. Once all foundation pile installation is complete, monthly 
reports would no longer be required.
    Annual Reporting--US Wind is required to submit an annual marine 
mammal monitoring (both PSO and PAM) report to NMFS Office of Protected 
Resources annually, describing, in detail, all of the information 
required in the monitoring section above for the previous calendar 
year. A final annual report must be prepared and submitted within 30 
calendar days following receipt of any NMFS comments on the draft 
report.
    Final Reporting--US Wind must submit its draft 5-year report(s) to 
NMFS Office of Protected Resources. The report must contain, but is not 
limited to, a description of activities conducted (including GIS files 
where relevant), and all visual and acoustic monitoring, including SFV 
and monitoring effectiveness, conducted under the LOA within 90 
calendar days of the completion of activities occurring under the LOA. 
A final 5-year report must be prepared and submitted within 60 calendar 
days following receipt of any NMFS comments on the draft report. 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 
development of the Project would require immediate reporting. For 
instance, if a North Atlantic right whale is observed at any time by 
PSOs or Project personnel, the sighting must be immediately (if not 
feasible, as soon as possible, and no longer than 24 hours after the 
sighting) reported to NMFS. If a North Atlantic right whale is 
acoustically detected at any time via a Project-related PAM system, the 
detection must be reported as soon as possible and no longer than 24 
hours after the detection to NMFS via the 24-hour North Atlantic right 
whale Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the 
hotline is not necessary when reporting PAM detections via the 
template.
    If a sighting of a stranded, entangled, injured, or dead marine 
mammal occurs, the sighting must be reported within 24 hours to NMFS 
Office of Protected Resources, the NMFS Greater Atlantic Stranding 
Coordinator for the New England/Mid-Atlantic area (866-755-6622) in the 
Northeast Region (if in the Southeast Region (NC to FL), contact 877-
942-5343), and the U.S. Coast Guard within 24 hours.
    In the event of a vessel strike of a marine mammal by any vessel 
associated with the Project or if Project activities cause a non-
auditory injury or death of a marine mammal, US Wind must immediately 
report the incident to NMFS. If in the Greater Atlantic Region (Maine 
to Virginia), US Wind must call the NMFS Greater Atlantic Stranding 
Hotline. Separately, US Wind must also and immediately report the 
incident to NMFS Office of Protected Resources and GARFO. US Wind must 
immediately cease all on-water activities, including pile driving, 
until NMFS Office of Protected Resources is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
MMPA. NMFS Office of Protected Resources may impose additional measures 
covered in the adaptive management provisions of this rule to minimize 
the likelihood of further prohibited take and ensure MMPA compliance. 
US Wind may not resume their activities until notified by NMFS.
    In the event of any lost gear associated with the fishery surveys, 
US Wind must report to the loss to GARFO as soon as possible or within 
24 hours of the documented time of missing or lost gear. This report 
must include information on any markings on the gear and any efforts 
undertaken or planned to recover the gear.
    The specifics of what NMFS Office of Protected Resources requires 
to be reported is listed at the end of this rulemaking in the 
regulatory text.
    Sound Field Verification--US Wind is required to submit interim SFV 
reports after each foundation installation as soon as possible but 
within 48 hours for thorough SFV. Abbreviated SFV reports must be 
included in the weekly monitoring reports. A final SFV report for all 
foundation installations will be required within 90 days following 
completion of acoustic monitoring.

Adaptive Management

    These regulations contain an adaptive management component. Our 
understanding of the effects of offshore wind construction activities 
(e.g., acoustic stressors) on marine mammals continues to evolve, which 
makes the inclusion of an adaptive management component both valuable 
and necessary within the context of 5-year regulations.
    The monitoring and reporting requirements in this final rule will 
provide NMFS with information that helps us to better understand the 
impacts of the Project's activities on marine mammals and informs our 
consideration of whether any changes to mitigation and monitoring are 
appropriate. The use of adaptive management allows NMFS to consider new 
information and modify mitigation, monitoring, or reporting 
requirements, as appropriate, with input from US Wind regarding 
practicability, if such modifications will have a reasonable likelihood 
of more effectively accomplishing the goal of the measures.

[[Page 84702]]

    The following are some of the possible sources of new information 
to be considered through the adaptive management process: (1) results 
from monitoring reports, including the weekly, monthly, situational, 
and annual reports required; (2) results from research on marine 
mammals, noise impacts, or other related topics; and (3) any 
information that reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOA. Adaptive management decisions may be made at any time, 
as new information warrants it. NMFS may consult with US Wind regarding 
the practicability of the modifications.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' by mortality, serious injury, or by Level A harassment and 
Level B harassment, we consider other factors, such as the likely 
nature of any behavioral responses (e.g., intensity, duration), the 
context of any such responses (e.g., critical reproductive time or 
location, migration), as well as effects on habitat, and the likely 
effectiveness of mitigation. We also assess the number, intensity, and 
context of estimated takes by evaluating this information relative to 
population status. Consistent with the 1989 preamble for NMFS' 
implementing regulations (54 FR 40338, September 29, 1989), the impacts 
from other past and ongoing anthropogenic activities are incorporated 
into this analysis via their impacts on the environmental baseline 
(e.g., as reflected in the regulatory status of the species, population 
size and growth rate where known, ongoing sources of human-caused 
mortality, or ambient noise levels).
    In the Estimated Take section, we listed the maximum number of 
allowable takes by Level A harassment and Level B harassment that could 
occur from US Wind's specified activities based on the methods 
described in the proposed rule. The impact that any given take would 
have is dependent on many case-specific factors that need to be 
considered in the negligible impact analysis (e.g., the context of 
behavioral exposures such as duration or intensity of a disturbance, 
the health of impacted animals, the status of a species that incurs 
fitness-level impacts to individuals, etc.). In this final rule, we 
evaluate the likely impacts of the enumerated harassment takes that may 
be authorized in the context of the specific circumstances surrounding 
these predicted takes. We also collectively evaluate this information, 
as well as other more taxa-specific information and mitigation measure 
effectiveness, in group-specific discussions that support our 
negligible impact conclusions for each stock. As described above, no 
serious injury or mortality is expected or may be authorized for any 
species or stock.
    The Description of the Specified Activities section describes US 
Wind's specified activities that may result in take of marine mammals 
and an estimated schedule for conducting those activities. US Wind has 
provided a realistic construction schedule although we recognize 
schedules may shift for a variety of reasons (e.g., weather or supply 
delays). However, US Wind would not be authorized to exceed the maximum 
annual of take authorized in any given year or across the five year 
effective period of the regulations, indicated in tables 6 and 7, 
respectively.
    We base our analysis and negligible impact determination on the 
maximum number of takes expected to occur annually and across the 5-
year effective period of these regulations, as well as extensive 
qualitative consideration of other contextual factors that influence 
the severity and nature of impact the takes have on the affected 
individuals and the number and the number of individuals affected. As 
stated before, the number of takes, both maximum annual and 5-year 
total, alone are only a part of the analysis.
    To avoid repetition, we provide some general analysis in this 
Negligible Impact Analysis and Determination section that applies to 
all the species listed in table 3 given that some of the anticipated 
effects of US Wind's construction activities on marine mammals are 
expected to be relatively similar in nature. Then, we subdivide into 
more detailed discussions for mysticetes, odontocetes, and pinnipeds 
which have broad life history traits that support an overarching 
discussion of some factors considered within the analysis for those 
groups (e.g., habitat-use patterns, high-level differences in feeding 
strategies).
    Last, we provide a negligible impact determination for each species 
or stock, providing species or stock-specific information or analysis, 
where appropriate, for example, for North Atlantic right whales given 
the population status. Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of US 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. It is important to note that in the group or 
species sections, we base our negligible impact analysis on the maximum 
annual take that is predicted under the 5-year rule, as well as the 5-
year total; however, WTG, Met tower, and OSS foundation installation, 
which are expected to result in the majority of the impacts, are 
scheduled to occur within the first 3 years of the five year effective 
period of this rule (2025 through 2027) (table 20 in the proposed rule 
and tables 6 and 7 in this final rule).
    As described previously, no serious injury or mortality is 
anticipated or authorized in this rule. Any Level A harassment 
authorized would be in the form of auditory injury (i.e., PTS) and not 
non-auditory injury (e.g., lung injury or gastrointestinal injury from 
detonations). The amount of harassment US Wind has requested, and NMFS 
has authorized, is based on exposure models that consider the outputs 
of acoustic source and propagation models and other data such as 
frequency of occurrence or group sizes. Several conservative parameters 
and assumptions are ingrained into these models, modeling the impact 
installation of all piles at a maximum hammer energy and application of 
the May sound speed profile to all months within a given season. The 
exposure model results do not reflect the clearance or shutdown 
measures or avoidance response. The amount of take requested and 
authorized also reflects careful consideration of other data (e.g., 
group size data) and, for Level A harassment potential of some large 
whales, the consideration of mitigation measures. For all species, the 
amount of take authorized represents the maximum amount of Level A 
harassment and Level B harassment that could occur.

Behavioral Disturbance

    In general, NMFS anticipates that impacts on an individual that has 
been harassed are likely to be more intense when exposed to higher 
received levels

[[Page 84703]]

and for a longer duration, though this is in no way a strictly linear 
relationship for behavioral effects across species, individuals, or 
circumstances, and less severe impacts result when exposed to lower 
received levels for a brief duration. However, there is also growing 
evidence of the importance of contextual factors such as distance from 
a source in predicting marine mammal behavioral response to sound 
(i.e., sounds of a similar level emanating from a more distant source 
have been shown to be less likely to evoke a response of equal 
magnitude (DeRuiter and Doukara, 2012; Falcone et al., 2017)). As 
described in the ``Potential Effects to Marine Mammals and their 
Habitat'' section of the proposed rule, the intensity and duration of 
any impact resulting from exposure to the specified activities is 
dependent upon a number of contextual factors including, but not 
limited to, sound source frequencies, whether the sound source is 
moving towards the animal, hearing ranges of marine mammals, behavioral 
state at time of exposure, status of individual exposed (e.g., 
reproductive status, age class, health) and an individual's experience 
with similar sound sources. Southall et al. (2021), Ellison et al. 
(2012), and Moore and Barlow (2013), among others, emphasize the 
importance of context (e.g., behavioral state of the animals, distance 
from the sound source) in evaluating behavioral responses of marine 
mammals to acoustic sources.
    Harassment of marine mammals may result in behavioral modifications 
(e.g., avoidance, temporary cessation of foraging or communicating, 
changes in respiration or group dynamics, masking) or may result in 
auditory impacts such as hearing loss. In addition, some of the lower-
level physiological stress responses (e.g., change in respiration, 
change in heart rate) discussed previously would likely co-occur with 
the behavioral modifications, although these physiological responses 
are more difficult to detect and fewer data exist relating these 
responses to specific received levels of sound. Takes by Level B 
harassment, then, may have a stress-related physiological component as 
well; however, we would not expect the specified activities to produce 
conditions of long-term and continuous exposure to noise leading to 
long-term physiological stress responses in marine mammals that could 
affect reproduction or survival.
    In the range of exposures that might result in Level B harassment 
(which by nature of the way it is modeled/counted, occurs within 1 
day), the less severe end might include exposure to comparatively lower 
levels of a sound, at a greater distance from the animal, for a few or 
several minutes. A less severe exposure of this nature could result in 
a behavioral response such as avoiding an area that an animal would 
otherwise have chosen to move through or feed in for some amount of 
time, or breaking off one or a few feeding bouts. More severe effects 
could occur if an animal gets close enough to the source to receive a 
comparatively higher level, is exposed continuously to one source for a 
longer time, or is exposed intermittently to different sources 
throughout a day. Such effects might result in an animal having a more 
severe avoidance response and leaving a larger area for a day or more 
or potentially losing feeding opportunities for a day or more. Such 
severe behavioral effects are expected to occur infrequently, though, 
and given the extensive mitigation and monitoring measures included in 
this rule, we expect severe behavioral effects to be minimized.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (i.e., a 24-hour cycle). 
Behavioral reactions to noise exposure, when taking place in a 
biologically important context, such as disruption of critical life 
functions, displacement, or avoidance of important habitat, are more 
likely to be significant if they last more than 1 day or recur on 
subsequent days (Southall et al., 2007) due to diel and lunar patterns 
in diving and foraging behaviors observed in many cetaceans (Baird et 
al., 2008; Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 
2014). It is important to note the water depth in the Project area is 
shallow (ranging up to 10-45 m in the ECRs, and 13 to 41.5 m in the 
Lease Area) and deep diving species, such as sperm whales, are not 
expected to be engaging in deep foraging dives when exposed to noise 
above NMFS harassment thresholds during the specified activities. 
Therefore, we do not anticipate impacts to deep foraging behavior to be 
impacted by the specified activities.
    It is important to identify that the estimated number of takes for 
each stock does not necessarily equate to the number of individual 
marine mammals expected to be harassed (which may be lower, depending 
on the circumstances), but rather to the instances of take (e.g., 
exposures above the Level B harassment thresholds) that may occur. 
These instances may represent brief exposures of either seconds to 
minutes for HRG surveys, or, in some cases, longer durations of 
exposure within (but not exceeding) a day (e.g., pile driving). Some 
members of a species or stock may experience one exposure (i.e., be 
taken on one day) as they move through an area, while other individuals 
may experience recurring instances of take over multiple days 
throughout the year, in which case the number of individuals taken is 
smaller than the total estimated take for that species or stock. In 
short, for species that are more likely to be migrating through the 
area and/or for which only a comparatively smaller number of takes are 
predicted (e.g., some of the mysticetes), it is more likely that each 
take represents a different individual. However, for non-migrating 
species and/or species with larger amounts of predicted take, we expect 
that the total anticipated takes represent exposures of a smaller 
number of individuals of which some would be taken across multiple 
days.
    For US Wind, impact pile driving of foundation piles is most likely 
to result in a higher magnitude and severity of behavioral disturbance 
than HRG surveys. Impact pile driving has higher source levels and 
longer durations (on an annual basis) than HRG surveys. HRG survey 
equipment also produces much higher frequencies than pile driving, 
resulting in minimal sound propagation. While impact pile driving for 
foundation installation is anticipated to be most impactful for these 
reasons, impacts are minimized through implementation of mitigation 
measures, including use of a sound attenuation system, soft-starts, the 
implementation of clearance zones that would facilitate a delay to pile 
driving commencement, and implementation of shutdown zones. All these 
measures are designed to avoid or minimize harassment. For example, 
given sufficient notice through the use of soft-start, marine mammals 
are expected to move away from a sound source that is disturbing prior 
to becoming exposed to very loud noise levels. The requirement to 
couple visual monitoring and PAM before and during all foundation 
installation would increase the overall capability to detect marine 
mammals rather than when one method is used alone.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if 
some smaller subset of the takes are in the form of a longer (several 
hours or a day) and more severe response, if they are not expected to 
be repeated over numerous or sequential days, impacts to individual 
fitness are not anticipated. Also, the effect of disturbance is 
strongly influenced by whether it overlaps with biologically important 
habitats when individuals are present--avoiding biologically important 
habitats will

[[Page 84704]]

reduce the likelihood of more significant behavioral impacts, for 
example reduced or lost foraging (Keen et al., 2021). Nearly all 
studies and experts agree that infrequent exposures of a single day or 
less are unlikely to impact an individual's overall energy budget 
(Farmer et al., 2018; Harris et al., 2017; King et al., 2015; National 
Academy of Science, 2017; New et al., 2014; Southall et al., 2007; 
Villegas-Amtmann et al., 2015).

Temporary Threshold Shift

    TTS is one form of Level B harassment that marine mammals may incur 
through exposure to the specified activities and, as described earlier, 
the takes by Level B harassment may represent takes in the form of 
direct behavioral disturbance, TTS, or both. As discussed in the 
``Potential Effects of Specified Activities on Marine Mammals and their 
Habitat'' section of the proposed rule, in general, TTS can last from a 
few minutes to days, be of varying degree, and occur across different 
frequency bandwidths, all of which determine the severity of the 
impacts on the affected individual, which can range from minor to more 
severe. Impact pile driving is a broadband noise source 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, we would anticipate the potential 
for TTS is higher in low-frequency cetaceans (i.e., mysticetes) than 
other marine mammal hearing groups and would be more likely to occur in 
frequency bands in which they communicate. However, we would not expect 
the TTS to span the entire communication or hearing range of any 
species given that the frequencies produced by these activities do not 
span entire hearing ranges for any particular species. Additionally, 
though the frequency range of TTS that marine mammals might sustain 
would overlap with some of the frequency ranges of their vocalizations, 
the frequency range of TTS from US Wind's pile driving activities would 
not typically span the entire frequency range of one vocalization type, 
much less span all types of vocalizations or other critical auditory 
cues for any given species. The required mitigation measures further 
reduce the potential for TTS in mysticetes.
    Generally, both the degree of TTS and the duration of TTS would be 
greater if the marine mammal is exposed to a higher level of energy 
(which would occur when the peak dB level is higher or the duration is 
longer). The threshold for the onset of TTS was discussed previously 
(refer back to Estimated Take section). However, source level alone is 
not a predictor of TTS. An animal would have to approach closer to the 
source or remain in the vicinity of the sound source appreciably longer 
to increase the received SEL, which would be difficult considering the 
required mitigation and the nominal speed of the receiving animal 
relative to the stationary sources such as impact pile driving. The 
recovery time is also of importance when considering the potential 
impacts from TTS. In TTS laboratory studies (as discussed in the 
``Potential Effects of the Specified Activities on Marine Mammals and 
their Habitat'' section of the proposed rule), some using exposures of 
almost an hour in duration or up to 217 SEL, almost all individuals 
recovered within 1 day or less (often in minutes) and we note that 
while the pile-driving activities last for hours a day, it is unlikely 
that most marine mammals would stay in the close vicinity of the source 
long enough to incur more severe TTS. Overall, given the small number 
of times that any individual might incur TTS, the low degree of TTS and 
the short anticipated duration, and the unlikely scenario that any TTS 
overlapped the entirety of a critical hearing range, it is unlikely 
that TTS (of the nature expected to result from the Project's 
activities) would result in behavioral changes or other impacts that 
would impact any individual's (of any hearing sensitivity) reproduction 
or survival.

Permanent Threshold Shift

    NMFS may authorize a very small amount of take by PTS to some 
marine mammal individuals. The numbers of annual takes by Level A 
harassment that may be authorized are relatively low for all marine 
mammal stocks and species (table 22). The only activity incidental to 
which we anticipate PTS may occur is from exposure to impact pile 
driving, which produces sounds that are both impulsive and primarily 
concentrated in the lower frequency ranges (below 1 kHz) (David, 2006; 
Krumpel et al., 2021).
    There are no PTS data on cetaceans and only one recorded instance 
of PTS being induced in older harbor seals (Reichmuth et al., 2019). 
However, available TTS data of mid-frequency hearing specialists 
exposed to mid- or high-frequency sounds (Southall et al., 2007; NMFS, 
2018; Southall et al., 2019) suggest that most threshold shifts occur 
in the frequency range of the source up to one octave higher than the 
source. We would anticipate a similar result for PTS. Further, no more 
than a small degree of PTS is expected to be associated with any of the 
incurred Level A harassment, given that it is unlikely that animals 
would stay in the close vicinity of a source for a duration long enough 
to produce more than a small degree of PTS.
    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 either impact pile driving, it is most likely 
that the affected animal would lose a few decibels in its hearing 
sensitivity, which in most cases is not likely to meaningfully affect 
its ability to forage and communicate with conspecifics. In addition, 
during impact pile driving, given sufficient notice through use of 
soft-start prior to implementation of full hammer energy during impact 
pile driving, marine mammals are expected to move away from a sound 
source that is disturbing prior to it resulting in severe PTS.

Auditory Masking or Communication Impairment

    The ultimate potential impacts of masking on an individual are 
similar to those discussed for TTS (e.g., decreased ability to 
communicate, forage effectively, or detect predators), but an important 
difference is that masking only occurs during the time of the signal, 
versus TTS, which continues beyond the duration of the signal. Masking 
may also result from the sum of exposure to multiple signals, none of 
which might individually cause TTS. Fundamentally, masking is referred 
to as a chronic effect because one of the key potential harmful 
components of masking is its duration--the fact that an animal would 
have reduced ability to hear or interpret critical cues becomes much 
more likely to cause a problem the longer it is occurring. Inherent in 
the concept of masking is the fact that the potential for the effect is 
only present during the times that the animal and the source are in 
close enough proximity for the effect to occur (and further, this time 
period would need to coincide with a time that the animal was utilizing 
sounds at the masked frequency).
    As our analysis has indicated, for this Project we expect that 
impact pile driving foundations have the greatest potential to mask 
marine mammal signals, and this pile driving may occur for several, 
albeit intermittent, hours per day, for multiple days per year. Masking

[[Page 84705]]

is fundamentally more of a concern at lower frequencies (which are 
pile-driving dominant frequencies) because low frequency signals 
propagate significantly further than higher frequencies. Low frequency 
signals are also more likely to overlap with the narrower low frequency 
calls of mysticetes, many non-communication cues related to fish and 
invertebrate prey, and geologic sounds that inform navigation. However, 
the area in which masking would occur for all marine mammal species and 
stocks (e.g., predominantly in the vicinity of the foundation pile 
being driven) is small relative to the extent of habitat used by each 
species and stock. As mentioned above, the project area does not 
overlap critical habitat 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 specified activities, paired with 
habitat use patterns by marine mammals, makes it unlikely that the 
level of masking that could occur would have the potential to affect 
reproductive success or survival.

Impacts on Habitat and Prey

    Construction activities (i.e., foundation installation) may result 
in fish and invertebrate mortality or injury very close to the source, 
and all of the specified activities may cause some fish to leave the 
area of disturbance. It is anticipated that any mortality or injury 
would be limited to a very small subset of available prey and the 
implementation of mitigation measures such as the use of a NAS during 
foundation installation would further limit the degree of impact. 
Behavioral changes in prey in response to construction activities could 
temporarily impact marine mammals' foraging opportunities in a limited 
portion of the foraging range but, because of the relatively small area 
of the habitat that may be affected at any given time (e.g., around a 
pile being driven), the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Cable presence is not anticipated to impact marine mammal habitat 
as these would be buried, and any electromagnetic fields emanating from 
the cables are not anticipated to result in consequences that would 
impact marine mammals' prey to the extent they would be unavailable for 
consumption. Although many species of marine mammal prey can detect 
electromagnetic fields, previous studies have shown little impacts on 
habitat use (Hutchinson et al., 2018). The inclusion of protective 
shielding on cables will also minimize any impacts of electromagnetic 
fields on marine mammal prey.
    The presence of wind turbines within the Lease Area could have 
longer-term impacts on marine mammal habitat, as the Project would 
result in the persistence of the structures within marine mammal 
habitat for more than 30 years. The presence of an extensive number of 
structures such as wind turbines are, in general, likely to result in 
local and broader oceanographic effects in the marine environment, and 
may disrupt dense aggregations and distribution of marine mammal 
zooplankton prey through altering the strength of tidal currents and 
associated fronts, changes in stratification, primary production, the 
degree of mixing, and stratification in the water column (Chen et al., 
2021; Johnson et al., 2021; Christiansen et al., 2022; Dorrell et al., 
2022). However, the scale of impacts is difficult to predict and may 
vary from hundreds of meters for local individual turbine impacts 
(Schultze et al., 2020) to large-scale changes stretching hundreds of 
kilometers (Christiansen et al., 2022).
    As discussed in the ``Potential Effects of the Specified Activities 
on Marine Mammals and their Habitat'' section of the proposed rule, the 
Project would consist of no more than 119 foundations (114 WTGs, 4 
OSSs, 1 Met tower) in the Lease Area, which will gradually become 
operational following construction completion. While there are likely 
to be oceanographic impacts from the presence of the Project, 
meaningful oceanographic impacts relative to stratification and mixing 
that would significantly affect marine mammal habitat and prey over 
large areas in key foraging habitats during the effective period of the 
regulations are not anticipated, nor is the project area located in the 
vicinity of any key marine mammal foraging areas. For these reasons, if 
oceanographic features are affected by the Project during the effective 
period of the regulations, the impact on marine mammal habitat and 
their prey is likely to be comparatively minor.
    The Maryland Wind BiOp provided an evaluation of the presence and 
operation of the Project on, among other species, listed marine mammals 
and their prey. Overall, the BiOp concluded that impacts from loss of 
soft bottom habitat from the presence of turbines and placement of 
scour protection as well as any beneficial reef effects, are expected 
to be so small that they cannot be meaningfully measured, evaluated, or 
detected and are, therefore, insignificant. The BiOp also concluded 
that while the presence and operation of the wind farm may change the 
distribution of plankton within the area of the wind farm locally, 
these changes are not expected to affect the oceanographic forces 
transporting zooplankton into the area. Regional distribution of 
plankton may vary from pre-wind facility conditions; however, given the 
lack of a known bathymetric feature that aggregates zooplankton prey in 
the lease area and acknowledging the information and uncertainty 
presented in the BiOp, the BiOp concluded that adverse effects on North 
Atlantic right whale foraging success due to near-field effects are not 
reasonably certain to occur. Relative to far-field effects (tens of 
kilometers from the outermost row of foundations in the Maryland Wind 
Lease Area), the BiOp does not anticipate disruption to conditions that 
would aggregate prey in or outside the Maryland Wind Energy Area (MD 
WEA) that would have significant effects on ESA listed species. This is 
due to the scale of the Project. Therefore, the BiOp concluded that an 
overall reduction in biomass of plankton is not an anticipated outcome 
of operating the Project. Thus, because broader changes in the biomass 
of zooplankton are not anticipated, any higher trophic level impacts 
are also not anticipated. That is, no effects to pelagic fish or 
benthic invertebrates that depend on plankton as forage food are 
expected to occur. Zooplankton, fish, and invertebrates are all 
considered marine mammal prey and, as fully described in the BiOp, 
measurable, detectable, or significant changes to marine mammal prey 
abundance and distribution from wind farm operation are not 
anticipated.

Mitigation To Reduce Impact on All Species

    This rule includes an extensive suite of mitigation measures 
designed to minimize impacts on all marine mammals, with a focus on 
North Atlantic right whales. The Mitigation section discusses the 
manner in which the required mitigation measures reduce the magnitude 
and/or severity of the take of marine mammals. For impact pile driving 
of foundation piles, ten overarching mitigation measures are required: 
(1) seasonal 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)

[[Page 84706]]

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 US Wind's 
personnel must be reported to PSOs; (9) SFV monitoring; and (10) vessel 
strike avoidance measures to reduce the risk of a collision with a 
marine mammal and vessel. For HRG surveys, we are requiring six 
measures: (1) measures specifically for vessel strike avoidance; (2) 
specific requirements during daytime HRG surveys; (3) implementation of 
clearance zones; (4) implementation of shutdown zones; (5) use of ramp-
up of acoustic sources; and (6) maintaining situational awareness of 
marine mammal presence through the requirement that any marine mammal 
sighting(s) by US Wind's personnel must be reported to PSOs.
    For activities with large harassment isopleths, US Wind will be 
required to reduce the noise levels generated to the lowest levels 
practicable and will be required to ensure that they do not exceed a 
noise footprint above that which was modeled, assuming a 10-dB 
attenuation. Use of a soft-start during impact pile driving will allow 
animals to move away from (i.e., avoid) the sound source prior to 
applying higher hammer energy levels needed to install the pile (US 
Wind will not use a hammer energy greater than necessary to install 
piles). Similarly, ramp-up during HRG surveys will allow animals to 
move away and avoid the acoustic sources before they reach their 
maximum energy level. For all activities, clearance zone and shutdown 
zone implementation, which are required when marine mammals are within 
given distances associated with certain impact thresholds for all 
activities, will reduce the magnitude and severity of marine mammal 
take. Additionally, the use of multiple PSOs (WTG, OSS, and Met tower 
foundation installation; HRG surveys), PAM (for impact foundation 
installation), and maintaining awareness of marine mammal sightings 
reported in the region during all specified activities will aid in 
detecting marine mammals that would trigger the implementation of the 
mitigation measures. The reporting requirements including SFV reporting 
(for foundation installation and foundation operation), will assist 
NMFS in identifying if impacts beyond those analyzed in this final rule 
are occurring, potentially leading to the need to enact adaptive 
management measures in addition to or in place of the mitigation 
measures.

Mysticetes

    Five mysticete species (comprising five stocks) of cetaceans (North 
Atlantic right whale, humpback whale, fin whale, sei whale, and minke 
whale) may be taken by harassment. These species, to varying extents, 
utilize the specified geographic region, including the project area, 
for the purposes of migration, foraging, and socializing. Mysticetes 
are in the low-frequency hearing group.
    Behavioral data on mysticete reactions to pile-driving noise are 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying, which is less likely for 
mysticetes in this area), disruption of foraging activities (if they 
are occurring in the area), local masking around the source, associated 
stress responses, impacts to prey, and 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 
individuals; 29 of these detections, totaling 51 individuals, occurred 
during pile driving (table 14 in South Fork Wind (2023)). South Fork's 
Trained Lookouts confirmed two separate sightings of individual NARWs 
during vessel transits in support of offshore construction-related 
activities during the reporting period. Each animal was observed 
opportunistically during non-transit periods when vessels were not 
underway. 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 project area are expected to 
primarily be migrating and, to a lesser degree, may be engaged in 
foraging behavior. The extent to which an animal engages in these 
behaviors in the area is species-specific and varies seasonally. Many 
mysticetes are expected to predominantly be migrating through the 
project area towards or from feeding grounds located further north 
(e.g., southern New England region, Gulf of Maine, Canada). While we 
acknowledged above that mortality, hearing impairment, or displacement 
of mysticete prey species may result locally from impact pile driving, 
given the very short duration of and broad availability of prey species 
in the area and the availability of alternative suitable foraging 
habitat for the mysticete species most likely to be affected, any 
impacts on mysticete foraging is expected to be minor. Whales 
temporarily displaced from the project area are expected to have 
sufficient remaining feeding habitat available to them and would not be 
prevented from feeding in other areas within the biologically important 
feeding habitats found further north. In addition, any displacement of 
whales or interruption of foraging bouts would be expected to be 
relatively temporary in nature.
    The potential for repeated exposures is dependent upon the 
residency time of whales with migratory animals unlikely to be exposed 
on repeated occasions and animals remaining in the area to be more 
likely exposed repeatedly. For mysticetes, where relatively low amounts 
of species-specific take by Level B harassment are predicted (compared 
to the abundance of each mysticete species or stock, such as is 
indicated in table 22) 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

[[Page 84707]]

different individual; the behavioral impacts would, therefore, be 
expected to occur within a single day within a year--an amount that 
NMFS would not expect to impact reproduction or survival. Species with 
longer residence time in the project area may be subject to repeated 
exposures across multiple days.
    In general, for this Project, the duration of exposures will not be 
continuous throughout any given day, and pile driving will not occur on 
all consecutive days within a given year due to weather delays or any 
number of logistical constraints US Wind has identified. Species-
specific analysis regarding potential for repeated exposures and 
impacts is provided below.
    Fin, humpback, minke, and sei whales are the only mysticete species 
for which PTS is anticipated and authorized. As described previously, 
PTS for mysticetes from some Project activities may overlap frequencies 
used for communication, navigation, or detecting prey. However, given 
the recent data from VW1 and South Fork, the nature and duration of the 
activity, the mitigation measures, and likely avoidance behavior, any 
PTS is expected to be of a small degree, would be limited to 
frequencies where pile-driving noise is concentrated (i.e., only a 
small subset of their expected hearing range) and would not be expected 
to impact reproductive success or survival.
North Atlantic Right Whale
    North Atlantic right whales are listed as endangered under the ESA 
and as both a depleted and strategic stock under the MMPA. As described 
in the ``Potential Effects to Marine Mammals and Their Habitat'' 
section of the proposed rule, North Atlantic right whales are 
threatened by a low population abundance, higher than average mortality 
rates, and lower than average reproductive rates. Recent studies have 
reported individuals showing high stress levels (e.g., Corkeron et al., 
2017) and poor health, which has further implications on reproductive 
success and calf survival (Christiansen et al., 2020; Stewart et al., 
2021; Stewart et al., 2022). As described below, a UME has been 
designated for North Atlantic right whales. Given this, the status of 
the North Atlantic right whale population is of heightened concern and, 
therefore, merits additional analysis and consideration. No Level A 
harassment, serious injury, or mortality is anticipated or may be 
authorized for this species.
    For North Atlantic right whales, this rule may allow up to ten 
takes to be authorized, by Level B harassment only, over the 5-year 
period, with a maximum annual allowable take by Level B harassment of 
four (equating to approximately 1.18 percent of the stock abundance, if 
each take were considered to be of a different individual). The project 
area is known as a migratory corridor for North Atlantic right whales 
and given the nature of migratory behavior (e.g., continuous path), as 
well as the very low number of total takes, we do not anticipate that 
any of the instances of take would represent repeat takes of any 
individual, though it could occur if whales are engaged in 
opportunistic foraging behavior. Barco et al. (2015) observed North 
Atlantic right whales engaging in open mouth behavior, north of the 
project area in Virginia coastal waters which is suggestive, though not 
necessarily indicative, of feeding. While opportunistic foraging may 
occur in the project area, the area does not support prime foraging 
habitat.
    The highest density of North Atlantic right whales in the project 
area occurs in the winter (table 6). The Mid-Atlantic, including the 
project area, may be a stopover site for migrating North Atlantic right 
whales moving to or from southeastern calving grounds. North Atlantic 
right whales have been acoustically detected in the vicinity of the 
project area year-round (Bailey et al., 2018) with the highest 
occurrences documented during late winter/early spring. Similarly, the 
waters off the coast of Maryland, including those surrounding the 
project area in the MD WEA, have documented North Atlantic right whale 
presence as the area is an important migratory route for the species to 
the northern feeding areas near the Gulf of Maine and Georges Banks and 
to their southern breeding and calving grounds off the southeastern 
United States (CETAP, 1982; LaBrecque et al., 2015; Salisbury et al., 
2016; Davis et al., 2017). However, comparatively, the project area is 
not known as an important area for feeding, breeding, or calving.
    North Atlantic right whales range outside the project area for 
their main feeding, breeding, and calving activities (Hayes et al., 
2023). Additional qualitative observations include animals feeding and 
socializing in New England waters, north of the MD WEA (Quintana-Rizzo 
et al., 2021). The North Atlantic right whales observed north of the MD 
WEA were primarily concentrated in the northeastern and southeastern 
sections of the Massachusetts WEA (MA WEA) during the summer (June-
August) and winter (December-February). North Atlantic right whale 
distribution shifted to the west into the Rhode Island/Massachusetts 
(RI/MA) WEA in the spring (March-May).Quintana-Rizzo et al. (2021) 
found that approximately 23 percent of the right whale population was 
present from December through May, and the mean residence time tripled 
to an average of 13 days during these months. The MD WEA is not in or 
near these areas important to feeding, breeding, and calving 
activities.
    In general, North Atlantic right whales in the project area are 
expected to be engaging in migratory behavior. Given the species' 
migratory behavior in the project area, we anticipate individual whales 
would be typically migrating through the area during most months when 
foundation installation would occur (given the seasonal restrictions on 
foundation installation, rather than lingering for extended periods of 
time). Other work that involves much smaller harassment zones (e.g., 
HRG surveys) may also occur during periods when North Atlantic right 
whales are using the habitat for migration. It is important to note the 
activities occurring from December through May that may impact North 
Atlantic right whale would be HRG surveys which are planned to take 
place during years 2 and 3 for only 14 days each year from April 
through June and would not result in very high received levels. Across 
all years, if an individual were to be exposed during a subsequent 
year, the impact of that exposure is likely independent of the previous 
exposure given the duration between exposures.
    As described in the Description of Marine Mammals in the Geographic 
Area of Specified Activities, North Atlantic right whales are presently 
experiencing an ongoing UME (beginning in June 2017). Preliminary 
findings support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of North Atlantic 
right whales. Given the current status of the North Atlantic right 
whale, the loss of even one individual could significantly impact the 
population. No mortality, serious injury, or injury of North Atlantic 
right whales as a result of the Project is expected or may be 
authorized. Any disturbance to North Atlantic right whales due to US 
Wind's activities is expected to result in only temporary avoidance of 
the immediate area of construction. As no injury, serious injury, or 
mortality is expected or may be authorized, and Level B harassment of 
North Atlantic right whales will be reduced to the level of least 
practicable adverse impact through

[[Page 84708]]

use of mitigation measures, the number of takes of North Atlantic right 
whales to be authorized would not exacerbate or compound the effects of 
the ongoing UME.
    As described in the general Mysticetes section above, foundation 
installation is likely to result in the highest amount of annual take 
and is of greatest concern given loud source levels. This activity 
would likely be limited to up to 119 days (114 for WTG monopile 
foundations, 4 days for OSS jacket foundations, and 1 day for Met tower 
pin pile foundations) over a maximum of 3 years, during times when, 
based on the best available scientific data, North Atlantic right 
whales are less frequently encountered due to their migratory behavior. 
The potential types, severity, and magnitude of impacts are also 
anticipated to mirror that described in the general Mysticetes section 
above, including avoidance (the most likely outcome), changes in 
foraging or vocalization behavior, masking, a small amount of TTS, and 
temporary physiological impacts (e.g., change in respiration, change in 
heart rate). Importantly, the effects of the specified activities are 
expected to be sufficiently low-level and localized to specific areas 
as to not meaningfully impact important behaviors, such as migratory 
behavior of North Atlantic right whales. These takes are expected to 
result in temporary behavioral reactions, such as slight displacement 
(but not abandonment) of migratory habitat or temporary cessation of 
feeding. Further, given these exposures are generally expected to occur 
to different individual right whales migrating through (i.e., most 
individuals would not be expected to be impacted on more than 1 day in 
a year), they are unlikely to result in energetic consequences that 
could affect reproduction or survival of any individuals.
    Overall, NMFS expects that any behavioral harassment of North 
Atlantic right whales incidental to the specified activities would not 
result in changes to their migration patterns or foraging success, as 
only temporary avoidance of an area during construction is expected to 
occur. As described previously, North Atlantic right whales migrating 
through the project area are not expected to remain in this habitat for 
extensive durations, and any temporarily displaced animals would be 
able to return to or continue to travel through and forage in these 
areas once activities have ceased.
    Although acoustic masking may occur in the vicinity of the 
foundation installation activities, based on the acoustic 
characteristics of noise associated with pile driving (e.g., frequency 
spectra, short duration of exposure) and construction surveys (e.g., 
intermittent signals), NMFS expects masking effects to be minimal 
(e.g., impact pile driving) to none (e.g., HRG surveys). In addition, 
masking would likely only occur during the period of time that a North 
Atlantic right whale is in the relatively close vicinity of pile 
driving, which is expected to be intermittent within a day, and 
confined to the months in which North Atlantic right whales are at 
lower densities and primarily moving through the area, anticipated 
mitigation effectiveness, and likely avoidance behaviors. TTS is 
another potential form of Level B harassment that could result in brief 
periods of slightly reduced hearing sensitivity affecting behavioral 
patterns by making it more difficult to hear or interpret acoustic cues 
within the frequency range (and slightly above) of sound produced 
during impact pile driving; however, any TTS would likely be of low 
amount, limited duration, and limited to frequencies where most 
construction noise is centered (below 2 kHz). NMFS expects that right 
whale hearing sensitivity would return to pre-exposure levels shortly 
after migrating through the area or moving away from the sound source.
    As described in the ``Potential Effects of Specified Activities on 
Marine Mammals and Their Habitat'' section of the proposed rule, the 
distance of the receiver to the source influences the severity of 
response with greater distances typically eliciting less severe 
responses. NMFS recognizes North Atlantic right whales migrating could 
be pregnant females (in the fall) and cows with older calves (in 
spring) and that these animals may slightly alter their migration 
course in response to any foundation pile driving; however, as 
described in the ``Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat'' section of the proposed rule, we anticipate 
that course diversion would be of small magnitude. Hence, while some 
avoidance of the pile driving activities may occur, we anticipate any 
avoidance behavior of migratory North Atlantic right whales would be 
similar to that of gray whales (Tyack et al., 1983), on the order of 
approximately hundreds of meters up to 1 to 2 km. This diversion from a 
migratory path otherwise uninterrupted by the planned activities is not 
expected to result in meaningful energetic costs that would impact 
annual rates of recruitment of survival. NMFS expects that North 
Atlantic right whales would be able to avoid areas during periods of 
active noise production while not being forced out of this portion of 
their habitat.
    North Atlantic right whale presence in the project area is year-
round. However, abundance during summer months is lower compared to the 
winter months with spring and fall serving as ``shoulder seasons'' 
wherein abundance waxes (fall) or wanes (spring). Given this year-round 
habitat usage, in recognition that where and when whales may actually 
occur during Project activities is unknown as it depends on the annual 
migratory behaviors, US Wind has proposed, and 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) will not only avoid the 
likelihood of vessel strikes but also will minimize the severity of 
behavioral disruptions by minimizing impacts (e.g., through sound 
reduction using attenuation systems and reduced temporal overlap of 
Project activities and North Atlantic right whales). This will further 
ensure that the number of takes by Level B harassment that are 
estimated to occur are not expected to affect reproductive success or 
survivorship by detrimental impacts to energy intake or cow/calf 
interactions during migratory transit. However, even in consideration 
of recent habitat-use and distribution shifts, US Wind will still be 
installing foundations when the presence of North Atlantic right whales 
is expected to be lower.
    As described in the Description of Marine Mammals in the Geographic 
Area of Specified Activities section, the Project will be constructed 
within the North Atlantic right whale migratory corridor BIA, which 
represent areas and months within which a substantial portion of a 
species or population is known to migrate. The 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, at the widest point across the corridor, offshore of Maryland 
where the corridor overlaps the Lease Area is approximately 163.8 km 
while the width of the Lease Area, at the longest point, is 
approximately 33.1 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); thereby,

[[Page 84709]]

any associated bio-energetic expenditure is anticipated to be small. 
There are no known North Atlantic right whale feeding, breeding, or 
calving areas within the project area. Prey species are mobile (e.g., 
calanoid copepods can initiate rapid and directed escape responses) and 
are broadly distributed throughout the project area (noting again that 
North Atlantic right whale prey is not particularly concentrated in the 
project area relative to more northern foraging habitats). Therefore, 
any impacts to prey that may occur are also unlikely to impact marine 
mammals.
    The most significant measure to minimize impacts to individual 
North Atlantic right whales is the seasonal moratorium on all 
foundation installation activities from December 1 through April 30, 
when North Atlantic right whale abundance in the project area is 
expected to be highest. NMFS also expects this measure to greatly 
reduce the potential for mother-calf pairs to be exposed to impact pile 
driving noise above the Level B harassment threshold during their 
annual spring migration through the project area from calving grounds 
to primary foraging grounds (e.g., Cape Cod Bay). NMFS expects that 
exposures to North Atlantic right whales will be reduced due to the 
additional required mitigation measures that would ensure that any 
exposures above the Level B harassment threshold would result in only 
short-term effects to individuals exposed.
    Pile driving may only begin in the absence of North Atlantic right 
whales (based on visual and passive acoustic monitoring). If pile 
driving has commenced, NMFS anticipates North Atlantic right whales 
would avoid the area, utilizing nearby waters to carry on pre-exposure 
behaviors. However, foundation installation activities must be shut 
down if a North Atlantic right whale is sighted at any distance unless 
a shutdown is not feasible due to risk of injury or loss of life or 
pile refusal or instability. 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). 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 required 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 
and any TTS that may occur would likely be of low degree and with 
recovery occurring quickly.
    The required clearance and shutdown measures are most effective 
when detection efficiency is maximized, as the measures are triggered 
by a sighting or acoustic detection. To maximize detection efficiency, 
US Wind proposed, and NMFS is requiring, the combination of PAM and 
visual observers. NMFS is requiring communication protocols with other 
Project vessels, and other heightened awareness efforts (e.g., daily 
monitoring of North Atlantic right whale sighting databases) such that 
as a North Atlantic right whale approaches the source (and thereby 
could be exposed to higher noise energy levels), PSO detection efficacy 
would increase, the whale would be detected, and a delay to commencing 
foundation installation or shutdown (if feasible) would occur. In 
addition, the implementation of a soft-start for impact pile driving 
would provide an opportunity for whales to move away from the source if 
they are undetected, reducing received levels.
    For HRG surveys, the maximum distance to the Level B harassment 
threshold is 200 m. The estimated take, by Level B harassment only, 
associated with HRG surveys is to account for any North Atlantic right 
whale sightings PSOs may miss when HRG acoustic sources are active. 
However, because of the relatively short maximum distance to the Level 
B harassment threshold, the requirement that vessels maintain a 
distance of 500 m from any North Atlantic right whales, the fact that 
whales are unlikely to remain in close proximity to an HRG survey 
vessel for any length of time, and that the acoustic source would be 
shut down if a North Atlantic right whale is observed within 500 m of 
the source, any exposure to noise levels above the harassment threshold 
(if any) would be very brief. To further minimize exposures, ramp-up of 
sub-bottom profilers must be delayed during the clearance period if 
PSOs detect a North Atlantic right whale (or any other ESA-listed 
species) within 500 m of the acoustic source. With implementation of 
the required mitigation measures, take by Level A harassment is 
unlikely and, therefore, not authorized. Potential impacts associated 
with Level B harassment would include low-level, temporary behavioral 
modifications, most likely in the form of avoidance behavior. Given the 
high level of precautions taken to minimize both the amount and 
intensity of Level B harassment on North Atlantic right whales, it is 
unlikely that the anticipated low-level exposures would lead to reduced 
reproductive success or survival.
    As described above, no serious injury or mortality, or Level A 
harassment, of North Atlantic right whale is anticipated or may be 
authorized. Extensive North Atlantic right whale-specific mitigation 
measures (beyond the robust suite required for all species) are 
expected to further minimize the amount and severity of Level B 
harassment. Given the documented habitat use within the area, the 
majority of the individuals predicted to be taken (including no more 
than ten instances of take, by Level B harassment only, over the course 
of the 5-year rule, with an annual maximum of no more than four) would 
be impacted on only 1, or maybe 2, days in a year as North Atlantic 
right whales utilize this area for migration and would be transiting 
rather than residing in the area for extended periods of time. Further, 
any impacts to North Atlantic right whales are expected to be in the 
form of lower-level behavioral disturbance.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, US 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 only) anticipated and 
to be 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 may be authorized for 
this species.
    This rule would allow for the authorization of up to 41 takes, by 
Level A harassment and Level B harassment, over the 5-year period. The 
maximum annual allowable take by Level A harassment and Level B 
harassment, would be 2 and 18, respectively (combined, this annual take 
(n=20) equates to approximately 0.29 percent of the stock abundance if 
each take were considered to be of a different individual). The project 
area does not

[[Page 84710]]

overlap with any known areas of specific biological importance to fin 
whales. It is possible that some subset of the individual whales 
exposed could be taken several times annually.
    Level B harassment is expected to be in the form of behavioral 
disturbance, primarily resulting in avoidance of the project area where 
foundation installation is occurring, and some low-level TTS and 
masking that may limit the detection of acoustic cues for relatively 
brief periods of time. Any potential PTS would be minor (limited to a 
few dB) and any TTS would be of short duration and concentrated at one-
half or one octave above the frequency band of pile driving noise (most 
sound is below 2 kHz) which does not include the full predicted hearing 
range of 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. Level B harassment 
would be temporary, with primary impacts being temporary displacement 
of the project area but not abandonment of any migratory or foraging 
behavior. There is no known foraging habitat for fin whales within the 
project area. Any fin whales in the project area would be expected to 
be migrating through the area and would have sufficient space to move 
away from Project activities.
    Fin whales are frequently observed in the waters off of Maryland 
and are one of the most commonly detected large baleen whales in 
continental shelf waters, principally from Cape Hatteras in the Mid-
Atlantic northward to Nova Scotia, Canada (CETAP, 1982; Hain et al., 
1992; BOEM 2012; Barco et al., 2015; Edwards et al., 2015; Bailey et 
al., 2018; Hayes et al., 2023). Fin whales have high relative abundance 
in the Mid-Atlantic and project area, and most observations occur in 
the winter and early spring months (Williams et al., 2015d; Barco et 
al., 2015), with larger group sizes occurring during the winter months 
(Barco et al., 2015). However, fin whales typically feed in waters off 
of New England and within the Gulf of Maine, areas north of the project 
area, as New England and Gulf of St. Lawrence waters represent major 
feeding ground for fin whales (Hayes et al., 2023). Hain et al. (1992) 
based on an analysis of neonate stranding data, suggested that calving 
takes place during October to January in latitudes of the U.S. mid-
Atlantic region; however, it is unknown where calving, mating, and 
wintering occur for most of the population (Hayes et al., 2023).
    Given the documented habitat use within the area, some of the 
individuals taken may be exposed on multiple days. However, as 
described, the project area does not include areas where fin whales are 
known to concentrate for feeding or reproductive behaviors and the 
predicted takes are expected to be in the form of lower-level impacts. 
Given the magnitude and severity of the impacts discussed above 
(including no more than 18 takes, by Level A harassment and Level B 
harassment, over the course of the 5-year rule, and a maximum annual 
allowable take by Level A harassment and Level B harassment, of 2 and 
18 respectively), and in consideration of the required mitigation and 
other information presented, US 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 A harassment and 
Level B harassment) anticipated and to be authorized would have a 
negligible impact on the western North Atlantic stock of fin whales.
Humpback Whale
    The West Indies DPS of humpback whales is not listed as threatened 
or endangered under the ESA, but the Gulf of Maine stock, which 
includes individuals from the West Indies DPS, is considered Strategic 
under the MMPA. However, as described in the Description of Marine 
Mammals in the Geographic Area of Specified Activities, humpback whales 
along the Atlantic Coast have been experiencing an active UME as 
elevated humpback whale mortalities have occurred along the Atlantic 
coast from Maine through Florida since January 2016. Of the cases 
examined, approximately 40 percent had evidence of human interaction 
(vessel strike or entanglement). The UME does not yet provide cause for 
concern regarding population-level impacts and take from vessel strike 
and entanglement would not be authorized. Despite the UME, the relevant 
population of humpback whales (the West Indies breeding population, or 
DPS, of which the Gulf of Maine stock is a part) remains stable at 
approximately 12,000 individuals.
    This final rule would allow for the authorization of up to 36 
takes, by Level A harassment and Level B harassment, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment would be 2 and 16, respectively (combined, this 
maximum annual take (n=18) equates to approximately 1.29 percent of the 
stock abundance if each take were considered to be of a different 
individual). Given that humpback whales are known to forage in areas 
just south of Maryland during the winter and could potentially be 
foraging off Maryland during this time as well, it is likely that some 
subset of the individual whales exposed could be taken several times 
annually.
    Among the activities analyzed, impact pile driving is likely to 
result in the highest amount of Level A harassment annual take of (n=2) 
humpback whales. The maximum amount of annual take to be authorized 
(n=14), by Level B harassment, is highest for impact pile driving.
    As described in the Description of Marine Mammals in the Geographic 
Area of Specified Activities section, humpback whales are known to 
occur regularly throughout the Mid-Atlantic Bight, including Maryland 
waters, with strong seasonality of peak occurrences during winter and 
spring (Barco et al., 2015; Bailey et al., 2018; Hayes et al., 2023).
    In the western North Atlantic, humpback whales feed during spring, 
summer, and fall over a geographic range encompassing the eastern coast 
of the United States. Feeding is generally considered to be focused in 
areas north of the project area, including a feeding BIA in the Gulf of 
Maine/Stellwagen Bank/Great South Channel, but has been documented 
farther south and off the coast of Virginia. When foraging, humpback 
whales tend to remain in the area for extended durations to capitalize 
on the food sources.
    Assuming humpback whales who are feeding in waters within or 
surrounding the project area behave similarly, we expect that the 
predicted instances of disturbance could be comprised of some 
individuals that may be exposed on multiple days if they are utilizing 
the area as foraging habitat. Also similar to other baleen whales, if 
migrating, individuals would likely be exposed to noise levels from the 
Project above the harassment thresholds only once during migration 
through the project area.
    For all the reasons described in the Mysticetes section above, we 
anticipate any potential PTS and TTS would be concentrated at one-half 
or one octave above the frequency band of pile driving noise (most 
sound is below 2 kHz) which is lower than the full predicted hearing 
range of humpback 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. Limited foraging

[[Page 84711]]

habitat exists for humpback whales within the project area as their 
main foraging habitat is located further north. Any humpback whales in 
the project area would more likely be migrating through the area.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 36 humpback whale takes over the course of the 
5-year rule, a maximum annual allowable take by Level A harassment and 
Level B harassment, of 2 and 16, respectively), and in consideration of 
the required mitigation measures and other information presented, US 
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 to be authorized would have 
a negligible impact on the Gulf of Maine stock of humpback whales.
Minke Whale
    Minke whales are not listed under the ESA, and the Canadian east 
coast stock is neither considered Depleted nor Strategic under the 
MMPA. There are no known areas of specific biological importance in or 
adjacent to the project area. As described in the Description of Marine 
Mammals in the Geographic Area of Specified Activities, a UME has been 
designated for this species but is pending closure. No serious injury 
or mortality is anticipated or may be authorized for this species.
    This final rule would allow for the authorization of up to 67 minke 
whale takes, by Level A harassment and Level B harassment, over the 5-
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be 6 and 41, respectively (combined, this 
annual take (n=47) equates to approximately 0.21 percent of the stock 
abundance if each take were considered to be of a different 
individual). As described in the Description of Marine Mammals in the 
Geographic Area of Specified Activities section, minke whales are 
common offshore the U.S. eastern seaboard with a strong seasonal 
component in the continental shelf and in deeper, off-shelf waters 
(CETAP, 1982; Hayes et al., 2023). In the project area, minke whales 
are predominantly migratory and their known feeding areas are north, 
including a feeding BIA in the southwestern Gulf of Maine and George's 
Bank. Therefore, they would be more likely to be moving through (with 
each take representing a separate individual), though it is possible 
that some subset of the individual whales exposed could be taken up to 
a few times annually.
    As described in the Description of Marine Mammals in the Geographic 
Area of Specified Activities section, there is a UME for minke whales 
along the Atlantic Coast from Maine through South Carolina, with the 
highest number of deaths in Massachusetts, Maine, and New York, and 
preliminary findings in several of the whales have shown evidence of 
human interactions or infectious diseases. However, we note that the 
population abundance is greater than 21,000 and the take to be 
authorized through this action is not expected to exacerbate the UME in 
any way.
    We anticipate the impacts of this harassment to follow those 
described in the general Mysticetes section above. Any potential PTS 
would be minor (limited to a few dB) and any TTS would be of short 
duration and concentrated at one-half or one octave above the frequency 
band of pile driving noise (most sound is below 2 kHz) which does not 
include the full predicted hearing range of minke whales. 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. Level B harassment would be temporary, with 
primary impacts being temporary displacement of the project area but 
not abandonment of any migratory or foraging behavior. Limited foraging 
habitat for minke whales exists in the project area as major foraging 
habitats are located further north near New England. Any minke whales 
in the project area would be expected to migrate through the area and 
would have sufficient space to move away from Project activities.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 67 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of 6 and 41, respectively), and in consideration of the 
required mitigation measures and other information presented, US 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 to be authorized would have a 
negligible impact on the Canadian eastern coastal stock of minke 
whales.
Sei Whale
    Sei whales are listed as Endangered under the ESA, and the Nova 
Scotia stock is considered both Depleted and Strategic under the MMPA. 
There are no known areas of specific biological importance in or 
adjacent to the project area and no UME has been designated for this 
species or stock. No serious injury or mortality is anticipated or may 
be authorized for this species.
    This final rule would allow for the authorization of up to six 
takes, by Level A harassment and Level B harassment, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment, would be one and one, respectively (combined, this 
annual take (n=2) equates to approximately 0.03 percent of the stock 
abundance, if each take were considered to be of a different 
individual). As described in the Description of Marine Mammals in the 
Geographic Area of Specified Activities section, most of the sei whale 
distribution is concentrated in Canadian waters and seasonally in 
northerly U.S. waters, though they are uncommonly observed in the 
waters off of Maryland. Because sei whales are migratory and their 
known feeding areas are east and north of the project area (e.g., there 
is a feeding BIA in the Gulf of Maine), they would be more likely to be 
moving through and, considering this and the very low number of total 
takes, it is unlikely that any individual would be exposed more than 
once within a given year.
    With respect to the severity of those individual takes by 
behavioral Level B harassment, we would anticipate impacts to be 
limited to low-level, temporary behavioral responses with avoidance and 
potential masking impacts in the vicinity of the turbine installation 
to be the most likely type of response. Any potential PTS and TTS would 
likely be concentrated at one-half or one octave above the frequency 
band of pile driving noise (most sound is below 2 kHz) which is below 
the full predicted hearing range of sei whales. Moreover, any TTS would 
be of a small degree. Any avoidance of the project area due to the 
Project's activities would be expected to be temporary. There is no 
known foraging habitat that exists in the project area for sei whales. 
Any sei whales in the project area would be expected to be migrating 
through the area.
    Given the magnitude and severity of the impacts discussed above 
(including no more than six takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A

[[Page 84712]]

harassment and Level B harassment, of one and one, respectively), and 
in consideration of the required mitigation measures and other 
information presented, US 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 to be 
authorized would have a negligible impact on the Nova Scotia stock of 
sei whales.

Odontocetes

    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below. Odontocetes include 
dolphins, porpoises, and all other whales possessing teeth, and we 
further divide them into the following subsections: sperm whales, small 
whales and dolphins, and harbor porpoise. These sub-sections include 
more specific information, as well as conclusions for each stock 
represented.
    All of the takes of odontocetes that may be authorized incidental 
to US Wind's specified activities are by pile driving and HRG surveys. 
No serious injury or mortality is anticipated or may be authorized. We 
anticipate that, given ranges of individuals (i.e., that some 
individuals remain within a small area for some period of time), and 
non-migratory nature of some odontocetes in general (especially as 
compared to mysticetes), these takes are more likely to represent 
multiple exposures of a smaller number of individuals than is the case 
for mysticetes, though some takes may also represent one-time exposures 
to an individual. Foundation installation is likely to disturb 
odontocetes to the greatest extent, compared to HRG surveys. While we 
expect animals to avoid the area during foundation installation, their 
habitat range is extensive compared to the area ensonified during these 
activities.
    As described earlier, Level B harassment may include direct 
disruptions in behavioral patterns (e.g., avoidance, changes in 
vocalizations (from masking) or foraging), as well as those associated 
with stress responses or TTS. Odontocetes are highly mobile species 
and, similar to mysticetes, NMFS expects any avoidance behavior to be 
limited to the area near the sound source. While masking could occur 
during foundation installation, it would only occur in the vicinity of 
and during the duration of the activity and would not generally occur 
in a frequency range that overlaps most odontocete communication or any 
echolocation signals. The mitigation measures (e.g., use of sound 
attenuation systems, implementation of clearance and shutdown zones) 
would also minimize received levels such that the severity of any 
behavioral response would be expected to be less than exposure to 
unmitigated noise exposure.
    Any masking or TTS effects are anticipated to be of low severity. 
First, the frequency range of pile driving, the most impactful activity 
that would be conducted in terms of response severity, falls within a 
portion of the frequency range of most odontocete vocalizations. 
However, odontocete vocalizations span a much wider range than the low-
frequency construction activities planned for the Project. As described 
above, recent studies suggest odontocetes have a mechanism to self-
mitigate (i.e., reduce hearing sensitivity) the impacts of noise 
exposure, which could potentially reduce TTS impacts. Any masking or 
TTS is anticipated to be limited and would typically only interfere 
with communication within a portion of an odontocete's range and as 
discussed earlier, the effects would only be expected to be of a short 
duration and, for TTS, a relatively small degree.
    Furthermore, odontocete echolocation occurs predominantly at 
frequencies significantly higher than low-frequency construction 
activities. Therefore, there is little likelihood that threshold shift 
would interfere with feeding behaviors. For HRG surveys, the sources 
operate at higher frequencies than foundation installation activities. 
However, sounds from these sources attenuate very quickly in the water 
column, as described above. Therefore, any potential for PTS and TTS 
and masking is very limited. Further, odontocetes (e.g., common 
dolphins, spotted dolphins, bottlenose dolphins) have demonstrated an 
affinity to bow-ride actively surveying HRG surveys. Therefore, the 
severity of any harassment during HRG surveys, if it does occur, is 
anticipated to be very low in severity based on the lack of avoidance 
previously demonstrated by these species.
    The waters off the coast of Maryland are used by several odontocete 
species. None of these species are listed under the ESA, and there are 
no known habitats of particular importance. In general, odontocete 
habitat ranges are far-reaching along the Atlantic coast of the United 
States, and the waters off of Maryland, including the project area, do 
not contain any unique odontocete habitat features.
Dolphins and Small Whales (Including Delphinids)
    The 10 species and 11 stocks included in this group for which NMFS 
may authorize take are not listed under the ESA; however, short-finned 
pilot whales are listed as Strategic under the MMPA. There are no known 
areas of specific biological importance in or around the project area 
for any of these species and no UMEs have been designated for any of 
these species. No serious injury, mortality, or take by Level A 
harassment is anticipated or may be authorized for these species.
    The 10 delphinid species for which NMFS may authorize take are: 
Atlantic spotted dolphin, Pantropical spotted dolphin, common 
bottlenose dolphin (coastal and northern migratory stocks), common 
dolphin, long-finned pilot whale, short-finned pilot whale, killer 
whale, rough-toothed dolphin, striped dolphin, and Risso's dolphin. 
This final rule would allow for the authorization of between 3 and 
3,013 takes (depending on species), by Level B harassment only, over 
the 5-year period. The maximum annual allowable take for these species 
by Level B harassment, would range from 3 to 1,762, respectively (this 
annual take equates to approximately 0.07 to 24.0 percent of the stock 
abundance, depending on each stock, if each take were considered to be 
of a different individual).
    For both stocks of bottlenose dolphins, given the comparatively 
higher number of total annual takes (1,591 for coastal and 1,768 for 
offshore) and the relative number of takes as compared to the stock 
abundance (24.0 and 2.81, respectively), primarily due to the 
progression of the location of impact pile driving each year, while 
some of the takes likely represent exposures of different individuals 
on 1 day a year, it is likely that some subset of the individuals 
exposed could be taken several times annually. For Atlantic spotted 
dolphins, Pantropical spotted dolphins, common dolphins, long- and 
short-finned pilot whales, killer whales, rough-toothed dolphins, 
striped dolphins, and Risso's dolphins, given the number of takes, 
while many of the takes likely represent exposures of different 
individuals on 1 day a year, some subset of the individuals exposed 
could be taken up to a few times annually.
    Dolphins and small delphinids engage in social, reproductive, and 
foraging behavior in the waters offshore of Maryland. However, the 
number of takes, likely movement patterns of the affected species, and 
the intensity of any Level B harassment, combined with the

[[Page 84713]]

availability of alternate nearby habitat that supports the 
aforementioned behaviors suggests that the likely impacts would not 
impact the reproduction or survival of any individuals. While 
delphinids may be taken on several occasions, none of these species are 
known to have small home ranges within the project area or known to be 
particularly sensitive to anthropogenic noise. No Level A harassment 
(PTS) is anticipated or may be authorized. Some TTS could 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.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, US 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 to be authorized 
would have a negligible impact on all of the species and stocks 
addressed in this section.
Harbor Porpoise
    Harbor porpoises are not listed as Threatened or Endangered under 
the ESA, and the Gulf of Maine/Bay of Fundy stock is neither considered 
Depleted 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 and may be authorized for this stock.
    This final rule would allow for the authorization of up to 74 
takes, by Level A harassment and Level B harassment, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment, would be 3 and 39, respectively (combined, this 
annual take (n=42) equates to approximately 0.04 percent of the stock 
abundance if each take were considered to be of a different 
individual). Given the number of takes, many of the takes likely 
represent exposures of different individuals on 1 day a year.
    Regarding the severity of takes by Level B harassment, because 
harbor porpoises are particularly sensitive to noise, it is likely that 
a fair number of the responses could be of a moderate nature, 
particularly to pile driving. In response to pile driving, harbor 
porpoises are likely to avoid the area during construction, as 
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne 
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United 
Kingdom, although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. Given that foundation 
installation is scheduled to occur off the coast of Maryland and, given 
alternative foraging areas nearby, any avoidance of the area by 
individuals is not likely to impact the reproduction or survival of any 
individuals.
    With respect to PTS and TTS, the effects on an individual are 
likely relatively low given the frequency bands of pile driving (most 
energy below 2 kHz) compared to harbor porpoise hearing (150 Hz to 160 
kHz peaking around 40 kHz). Specifically, TTS is unlikely to impact 
hearing ability in their more sensitive hearing ranges, or the 
frequencies in which they communicate and echolocate. We expect any PTS 
that may occur to be within the very low end of their hearing range 
where harbor porpoises are not particularly sensitive, and any PTS 
would affect a relatively small portion of the individual's hearing 
range. As such, any PTS would not interfere with key foraging or 
reproductive strategies necessary for reproduction or survival.
    Harbor porpoises are seasonally distributed (Hayes et al., 2023). 
During fall (October through December) and spring (April through June), 
harbor porpoises are widely dispersed from New Jersey to Maine, with 
lower densities farther north and south. During winter (January to 
March), intermediate densities of harbor porpoises can be found in 
waters off New Jersey to North Carolina, and lower densities are found 
in waters off New York to New Brunswick, Canada. In non-summer months 
they have been seen from the coastline to deep waters (>1800 m; 
Westgate et al., 1998), although the majority are found over the 
continental shelf. While harbor porpoises are likely to avoid the area 
during any of the Project's construction activities, as demonstrated 
during European wind farm construction, the time of year in which work 
would occur is when harbor porpoises are not in highest abundance, and 
any work that does occur would not result in the species' abandonment 
of the waters off of Maryland.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, US 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 to be authorized 
would have a negligible impact on the Gulf of Maine/Bay of Fundy stock 
of harbor porpoises.

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

    The harbor seal, gray seal, and harp seal are not listed under the 
ESA, and these stocks are not considered Depleted or Strategic under 
the MMPA. There are no known areas of specific biological importance in 
or around the project area. As described in the Description of Marine 
Mammals in the Geographic Area of Specified Activities section, a UME 
was designated for harbor seals and gray seals from June 20 through 
July 20, 2023 but has since been closed. No serious injury or mortality 
is anticipated or may be authorized for any seal species.
    As limited occurrence data for seals are available for the project 
area, take estimates for harbor seals, gray seals, and harp seals are 
presented as one estimate. For the three seal species, this final rule 
would allow for the total authorization of up to 496 seals by Level B 
harassment, over the 5-year period. The maximum annual allowable take 
for these species, by Level B harassment, would be 341 seals. If all of 
the allocated take was attributed to gray seals, this take would equate 
to 1.25 percent of the gray seal stock abundance, if each take were 
considered to be of a different individual. If all of the allocated 
take was attributed to harbor seals, this take would equate to 0.56 
percent of the harbor seal stock abundance, if each take were 
considered to be of a different individual. If all of the allocated 
take was attributed to harp seals, this take would equate to 0.004 
percent of the harp seal stock abundance. Gray seals, harbor seals, and 
harp seals are considered migratory and none of these species have 
specific feeding areas that have been designated in the area, 
therefore, it is likely that takes of seals would represent exposures 
of different individuals throughout the Project duration.
    Harp seals are considered extralimital in the project area, 
however, harp seal strandings have been documented in Maryland during 
the winter and spring (Hayes et al., 2023; NAB, 2023a; NAB, 2023b). 
Harbor and gray seals occur in Maryland waters most often from late

[[Page 84714]]

winter to early spring, with harbor seal occurrences being more common 
than gray seals (Hayes et al., 2023). Seals are more likely to be close 
to shore (e.g., closer to the edge of the area ensonified above NMFS' 
harassment threshold), such that exposure to foundation installation 
and HRG surveys would be expected to be at comparatively lower levels. 
Although a gray seal rookery may occur off the coast of Cape Henlopen, 
north of the project area, based on the distance of this area from the 
project area it is not expected that in-air sounds produced would cause 
the take of hauled out pinnipeds. As this is the closest documented 
pinniped haul-out to the project area, NMFS does not expect any 
harassment to occur, nor plans to authorize any take from in-air 
impacts on hauled out seals.
    As described in the Potential Effects of Specified Activities on 
Marine Mammals and Their Habitat section, construction of wind farms in 
Europe resulted in pinnipeds temporarily avoiding construction areas 
but returning within short time frames after construction was complete 
(Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 2015; Russell 
et al., 2016; Brasseur et al., 2010). Effects on pinnipeds that are 
taken by Level B harassment in the project area would likely be limited 
to reactions such as increased swimming speeds, increased surfacing 
time, or decreased foraging (if such activity were occurring). Most 
likely, individuals would simply move away from the sound source and be 
temporarily displaced from those areas (Lucke et al., 2006; Edren et 
al., 2010; Skeate et al., 2012; Russell et al., 2016). Given the low 
anticipated magnitude of impacts from any given exposure (e.g., 
temporary avoidance), even potential repeated Level B harassment across 
a few days of some small subset of individuals, which could occur, is 
unlikely to result in impacts on the reproduction or survival of any 
individuals. Moreover, pinnipeds would benefit from the mitigation 
measures described in 50 CFR part 217--Regulations Governing the Taking 
and Importing of Marine Mammals Incidental to Specified Activities.
    As described above, noise from pile driving is mainly low-frequency 
and, while any TTS that does occur would fall within the lower end of 
pinniped hearing ranges (50 Hz to 86 kHz), TTS would not occur at 
frequencies around 5 kHz, where pinniped hearing is most susceptible to 
noise-induced hearing loss (Kastelein et al., 2018). No Level A 
harassment (PTS) is anticipated or may be authorized. In summary, any 
TTS would be of small degree and not occur across the entire, or even 
most sensitive, hearing range. Hence, any impacts from TTS are likely 
to be of low severity and not interfere with behaviors critical to 
reproduction or survival.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, US 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 may be 
authorized would have a negligible impact on harbor, gray, and harp 
seals.

Negligible Impact Determination

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

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals 
estimated to be taken to the most appropriate estimation of abundance 
of the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. When the 
predicted number of individuals to be taken is less than one-third of 
the species or stock abundance, the take is considered to be of small 
numbers (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.
    The final rule allows for incidental take (by Level A harassment 
and/or Level B harassment) of 19 species of marine mammal (with 20 
managed stocks). The maximum number of instances of takes by combined 
Level A harassment and Level B harassment possible within any one year 
and that would be authorized relative to the best available population 
abundance is less than one-third for all species and stocks potentially 
impacted.
    For 13 of these species (13 stocks), the allowable take by Level A 
and/or Level B harassment equates to less than 1 percent as compared to 
the stock abundance. For five stocks, the allowable take by Level A 
and/or Level B harassment equates to less than 5 percent as compared to 
the stock abundance, and for one stock the take by Level A and/or Level 
B harassment equates to just under 25 percent as compared to the stock 
abundance (coastal stock of bottlenose dolphins), assuming that each 
instance of take represents a different individual. Specific to the 
North Atlantic right whale, the maximum amount of take in any given 
year, which is by Level B harassment only, is four, or 1.18 percent of 
the stock abundance, assuming that each instance of take represents a 
different individual. Please see table 22 for information relating to 
this small numbers analysis.
    Based on the analysis contained herein of the planned activities 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals would be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Classification

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency ensure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the promulgation of rulemakings, 
NMFS

[[Page 84715]]

consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with the NOAA GARFO.
    This final rule allows for the take of three marine mammal species 
listed under the ESA: North Atlantic right, fin, and sei whales. The 
Permits and Conservation Division requested initiation of section 7 
consultation on December 5, 2023, with GARFO for the promulgation of 
the rulemaking. NMFS GARFO issued a BiOp on June 18, 2024, concluding 
that the promulgation of the rule and issuance of LOA thereunder is not 
likely to jeopardize the continued existence of threatened and 
endangered species under NMFS' jurisdiction and is not likely to result 
in the destruction or adverse modification of designated or proposed 
critical habitat. The BiOp is available at: https://repository.library.noaa.gov/view/noaa/61632.
    US Wind is required to abide by these promulgated regulations, as 
well as the reasonable and prudent measure and terms and conditions of 
the BiOp and Incidental Take Statement, as issued by NMFS.

National Environmental Policy Act (NEPA)

    To comply with NEPA (42 U.S.C. 4321 et seq.) and the NOAA 
Administrative Order 216-6A, NMFS must evaluate our proposed action 
(i.e., promulgation of regulation) and alternatives with respect to 
potential impacts on the human environment. NMFS participated as a 
cooperating agency on the BOEM 2024 Final EIS (FEIS), which was 
finalized on, and is available at: https://www.boem.gov/renewable-energy/state-activities/maryland-offshore-wind-final-environmental-
impact-statement-eis.
    When acting as a cooperating agency, as is the case with this 
Project, NMFS may satisfy its independent NEPA obligations by either 
preparing a separate NEPA analysis for its issuance of an incidental 
take authorization or, if appropriate, by adopting the NEPA analysis 
prepared by the lead agency (40 CFR 1506.3(b)). In accordance with 40 
CFR 1506.3, NMFS independently reviewed and evaluated the 2024 Maryland 
Offshore Wind FEIS and determined that it is adequate and sufficient to 
meet our responsibilities under NEPA for the promulgation of this rule 
and issuance of the associated LOA. NMFS, therefore, has adopted the 
2024 Maryland Offshore Wind FEIS through a joint Record of Decision 
(ROD) with BOEM. The joint ROD for adoption of the 2024 Maryland 
Offshore Wind FEIS and promulgation of this final rule and subsequent 
issuance of a LOA can be found at: https://www.boem.gov/renewable-energy/state-activities/maryland-offshore-wind.

Executive Order 12866

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

Regulatory Flexibility Act (RFA)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions) 
directly affected by the rule. However, no regulatory flexibility 
analysis is required if the head of an agency, or that person's 
designee, certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. The Chief Counsel for 
Regulation for the Department of Commerce certified at the proposed 
rule stage that this rule would not have a significant economic impact 
on a substantial number of small entities. US Wind, the sole entity 
subject to these requirements, is not a small governmental 
jurisdiction, small organization or small business. We received no 
information that changes the factual basis of this certification. As a 
result, a regulatory flexibility analysis was not required and none was 
prepared.

Paperwork Reduction Act (PRA)

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

Coastal Zone Management Act (CZMA)

    The CZMA requires Federal actions within and outside the coastal 
zone that have reasonably foreseeable effects on any coastal use or 
natural resource of the coastal zone be consistent with the enforceable 
policies of a State's federally approved coastal management program (16 
U.S.C. 1456(c)). NMFS has determined that US Wind's application for 
incidental take regulations is not an activity listed by the MD DNR 
pursuant to 15 CFR 930.53 and, thus, is not subject to Federal 
consistency requirements in the absence of the receipt and prior 
approval of an unlisted activity review request from the State by the 
Director of NOAA's Office for Coastal Management. Consistent with 15 
CFR 930.54, NMFS published Notice of Receipt of US Wind's application 
for this incidental take regulation in the Federal Register on May 2, 
2023 (88 FR 27453) and published the proposed rule on January 4, 2024 
(89 FR 504). The State of Maryland did not request approval from the 
Director of NOAA's Office for Coastal Management to review US Wind's 
application as an unlisted activity, and the time period for making 
such request has expired. Therefore, NMFS has determined the ITA is not 
subject to Federal consistency review.

List of Subjects in 50 CFR Part 217

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

    Dated: September 26, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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

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


0
2. Add subpart II, consisting of Sec. Sec.  217.340 through 217.349, to 
read as follows:
Subpart II--Taking Marine Mammals Incidental to the Maryland Offshore 
Wind Project Offshore of Maryland
Sec.
217.340 Specified activity and specified geographical region.
217.341 Effective dates.
217.342 Permissible methods of taking.
217.343 Prohibitions.
217.344 Mitigation requirements.
217.345 Monitoring and reporting requirements.
217.346 Letter of Authorization.
217.347 Modifications of Letter of Authorization.

[[Page 84716]]

217.348-217.349 [Reserved]

Subpart II--Taking Marine Mammals Incidental to the Maryland 
Offshore Wind Project Offshore of Maryland


Sec.  217.340   Specified activity and specified geographical region.

    (a) Regulations in this subpart apply to activities associated with 
the Maryland Offshore Wind Project (hereafter referred to as the 
``Project'') by US Wind, Inc. (hereafter referred to as ``LOA 
Holder''), and those persons it authorizes or funds to conduct 
activities on its behalf in the area outlined in paragraph (b) of this 
section. Requirements imposed on LOA Holder must be implemented by 
those persons it authorizes or funds to conduct activities on its 
behalf.
    (b) The specified geographical region is the Mid-Atlantic Bight, 
defined as waters from Cape Hatteras, North Carolina to Cape Cod, 
Massachusetts and extending into the west Atlantic to the 100-meter (m) 
isobath, and includes, but is not limited to, the Bureau of Ocean 
Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 
0490 Commercial Lease of Submerged Lands for Renewable Energy 
Development, along the relevant Export Cable Corridors (ECC), and at 
the sea-to-shore transition points located within Delaware Seashore 
State Park.
    (c) The specified activities are impact pile driving of wind 
turbine generator (WTG), offshore substation (OSS), and a 
meteorological tower (Met tower) foundations; high-resolution 
geophysical (HRG) site characterization surveys; vessel transit within 
the specified geographical region to transport crew, supplies, and 
materials; WTG and OSS operation; fishery and ecological monitoring 
surveys; placement of scour protection; and trenching, laying, and 
cable burial activities.


Sec.  217.341   Effective dates.

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


Sec.  217.342   Permissible methods of taking.

    Under the LOA, issued pursuant to Sec. Sec.  216.106 of this 
chapter and 217.346, the LOA Holder, and those persons it authorizes or 
funds to conduct activities on its behalf, may incidentally, but not 
intentionally, take marine mammals within the vicinity of BOEM Lease 
Area OCS-A 0490 Commercial Lease of Submerged Lands for Renewable 
Energy Development and associated cable corridor, provided the LOA 
Holder is in complete compliance with all terms, conditions, and 
requirements of the regulations in this subpart and the appropriate 
LOA:
    (a) By Level B harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving (WTG, OSS, and Met tower 
foundation installation) and HRG site characterization surveys.
    (b) By Level A harassment associated with auditory injury of marine 
mammals by impact pile driving of WTG foundations.
    (c) Take by mortality or serious injury of any marine mammal 
species is not authorized.
    (d) The incidental take of marine mammals by the activities listed 
in paragraphs (a) and (b) of this section is limited to the following 
species.

                        Table 1 to Paragraph (d)
------------------------------------------------------------------------
    Marine mammal species        Scientific name            Stock
------------------------------------------------------------------------
North Atlantic right whale..  Eubalaena glacialis.  Western Atlantic.
Fin whale...................  Balaenoptera          Western North
                               physalus.             Atlantic.
Humpback whale..............  Megaptera             Gulf of Maine.
                               novaeangliae.
Minke whale.................  Balaenoptera          Canadian Eastern
                               acutorostrata.        Coastal.
Sei whale...................  Balaenoptera          Nova Scotia.
                               borealis.
Killer whale................  Orcinus orca........  Western North
                                                     Atlantic.
Atlantic spotted dolphin....  Stenella frontalis..  Western North
                                                     Atlantic.
Pantropical spotted dolphin.  Stenella attenuata..  Western North
                                                     Atlantic.
Bottlenose dolphin..........  Tursiops truncatus..  Western North
                                                     Atlantic--Offshore.
                                                    Northern Migratory
                                                     Coastal.
Common dolphin..............  Delphinus delphis...  Western North
                                                     Atlantic.
Long-finned pilot whale.....  Globicephala melas..  Western North
                                                     Atlantic.
Short-finned pilot whale....  Globicephala          Western North
                               macrorhynchus.        Atlantic.
Risso's dolphin.............  Grampus griseus.....  Western North
                                                     Atlantic.
Rough-toothed dolphin.......  Steno bredanensis...  Western North
                                                     Atlantic.
Striped dolphin.............  Stenella              Western North
                               coeruleoalba.         Atlantic.
Harbor porpoise.............  Phocoena phocoena...  Gulf of Maine/Bay of
                                                     Fundy.
Gray seal...................  Halichoerus grypus..  Western North
                                                     Atlantic.
Harbor seal.................  Phoca vitulina......  Western North
                                                     Atlantic.
Harp seal...................  Pagophilus            Western North
                               groenlandicus.        Atlantic.
------------------------------------------------------------------------

Sec.  217.343   Prohibitions.

    Except for the takings described in Sec.  217.342 and authorized by 
the LOA issued under this subpart, it is unlawful for any person to do 
any of the following in connection with the activities described in 
this subpart:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or the LOA issued under this subpart.
    (b) Take any marine mammal not specified in Sec.  217.342(d).
    (c) Take any marine mammal specified in the LOA in any manner other 
than as specified in the LOA.
    (d) Take any marine mammal specified in Sec.  217.342(d), after 
National Marine Fisheries Service (NMFS) Office of Protected Resources 
determines such taking results in more than a negligible impact on the 
species or stocks of such marine mammals.


Sec.  217.344   Mitigation requirements.

    When conducting the activities identified in Sec.  217.340(c) 
within the area described in Sec.  217.340(b), LOA Holder must 
implement the mitigation measures contained in this section and any LOA 
issued under Sec. Sec.  217.346 and 217.347. These mitigation measures 
include, but are not limited to:
    (a) General conditions. LOA Holder must comply with the following 
general measures:
    (1) A copy of any issued LOA must be in the possession of LOA 
Holder and its designees, all vessel operators, visual protected 
species observers (PSO), passive acoustic monitoring (PAM)

[[Page 84717]]

operators, pile driver operators, and any other relevant designees 
operating under the authority of the issued LOA;
    (2) LOA Holder must conduct training for construction, survey, and 
vessel personnel and the marine mammal monitoring team (PSO and PAM 
operators) prior to the start of all in-water construction activities 
in order to explain responsibilities, communication procedures, marine 
mammal detection and identification, mitigation, monitoring, and 
reporting requirements, safety and operational procedures, and 
authorities of the marine mammal monitoring team(s). This training must 
be repeated for new personnel who join the work during the Project. A 
description of the training program must be provided to NMFS at least 
60 days prior to the initial training before in-water activities begin. 
Confirmation of all required training must be documented on a training 
course log sheet and reported to NMFS Office of Protected Resources 
prior to initiating Project activities;
    (3) Prior to and when conducting any in-water activities and vessel 
operations, LOA Holder personnel and contractors (e.g., vessel 
operators, PSOs) must use available sources of information on North 
Atlantic right whale presence in or near the project area including 
daily monitoring of the Right Whale Sightings Advisory System, and 
monitoring of U.S. Coast Guard VHF Channel 16 throughout the day to 
receive notification of any sightings and/or information associated 
with any slow zones (i.e., Dynamic Management Areas (DMA) and/or 
acoustically-triggered slow zones) to provide situational awareness for 
both vessel operators, PSO(s), and PAM operator(s); the marine mammal 
monitoring team must monitor these systems no less than every 4 hours;
    (4) Any large whale observation by any project personnel or 
acoustic detection by a PAM operator must be conveyed to all vessel 
captains and on-duty PSOs. Any marine mammal observed by project 
personnel during pile driving must be conveyed to on-duty PSOs;
    (5) In the event that a large whale is sighted or acoustically 
detected that cannot be confirmed as a non-North Atlantic right whale, 
it must be treated as if it were a North Atlantic right whale for 
purposes of mitigation;
    (6) PSOs and PAM operators have the authority to call for a delay 
or shutdown to an activity, and LOA Holder must instruct all personnel 
regarding the authority of the PSOs and PAM operators. Any 
disagreements between a PSO, PAM operator, and the activity operator 
regarding delays or shutdowns may only be discussed after the 
mitigative action has occurred;
    (7) If an individual from a species for which authorization has not 
been granted, or a species for which authorization has been granted but 
the authorized take number has been met, is observed entering or within 
the relevant Level B harassment zone prior to or during a specified 
activity, the activity must be delayed or shut down, unless doing so 
would result in imminent risk of injury or loss of life to an 
individual, pile refusal, or pile instability. The activity must not 
commence or resume until the animal(s) has been confirmed to have left 
and is on a path away from the Level B harassment zone or after 15 
minutes for small odontocetes and pinnipeds, and 30 minutes for all 
other species with no further sightings;
    (8) For in-water construction heavy machinery activities other than 
pile driving, if a marine mammal is on a path towards or comes within 
10 m (32.8 feet (ft)) of equipment, LOA Holder must cease operations 
until the marine mammal has moved more than 10 m on a path away from 
the activity to avoid direct interaction with equipment;
    (9) All vessels must be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and LOA Holder 
must report all Maritime Mobile Service Identity (MMSI) numbers to NMFS 
Office of Protected Resources prior to commencing initial transits;
    (10) By accepting the issued LOA, LOA Holder consents to on-site 
observation and inspections by Federal agency personnel (including NOAA 
personnel) during activities described in this subpart, for the 
purposes of evaluating the implementation and effectiveness of measures 
contained within the LOA and this subpart;
    (11) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with a PSO, PAM Operator, or vessel crew member acting as an 
observer, or attempt the same. This prohibition includes, but is not 
limited to, any action that interferes with an observer's 
responsibilities, or that creates an intimidating, hostile, or 
offensive environment. Personnel may report any violations to the NMFS 
Office of Law Enforcement; and
    (12) The LOA Holder must also abide by the reasonable and prudent 
measures and terms and conditions of the Biological Opinion and 
Incidental Take Statement, as issued by NMFS, pursuant to section 7 of 
the Endangered Species Act.
    (b) Vessel strike avoidance measures. LOA Holder must comply with 
the following vessel strike avoidance measures while in the specified 
geographical region, unless a deviation is necessary to maintain safe 
maneuvering speed and justified because the vessel is in an area where 
oceanographic, hydrographic, and/or meteorological conditions severely 
restrict the maneuverability of the vessel; an emergency situation 
presents a threat to the health, safety, or life of a person; or when a 
vessel is actively engaged in emergency rescue or response duties, 
including vessel-in-distress or environmental crisis response. An 
emergency is defined as a serious event that occurs without warning and 
requires immediate action to avert, control, or remedy harm. Speed over 
ground will be used to measure all vessel speed restrictions.
    (1) Prior to the start of the Project's activities involving 
vessels, all vessel personnel must receive a protected species training 
that covers, at a minimum, identification of marine mammals that have 
the potential to occur where vessels would be operating; detection 
observation methods in both good weather conditions (i.e., clear 
visibility, low winds, low sea states) and bad weather conditions 
(i.e., fog, high winds, high sea states, with glare); sighting 
communication protocols; all vessel speed and approach limit mitigation 
requirements (e.g., vessel strike avoidance measures); and information 
and resources available to the project personnel regarding the 
applicability of Federal laws and regulations for protected species. 
This training must be repeated for any new vessel personnel who join 
the Project. Confirmation of the observers' training and understanding 
of the Incidental Take Authorization (ITA) requirements must be 
documented on a training course log sheet and reported to NMFS Office 
of Protected Resources prior to vessel activities;
    (2) LOA Holder, regardless of their vessel's size, must maintain a 
vigilant watch for all marine mammals and slow down, stop their vessel, 
or alter course to avoid striking any marine mammal;
    (3) LOA Holder's underway vessels (e.g., transiting, surveying) 
operating at any speed must have a dedicated visual observer on duty at 
all times to monitor for marine mammals within a 180[deg] direction of 
the forward path of the vessel (90[deg] port to 90[deg] starboard) 
located at an appropriate vantage point for ensuring vessels are 
maintaining appropriate separation distances. Visual

[[Page 84718]]

observers must be equipped with alternative monitoring technology 
(e.g., night vision devices, infrared cameras) for periods of low 
visibility (e.g., darkness, rain, fog, etc.). The dedicated visual 
observer must receive prior training on protected species detection and 
identification, vessel strike minimization procedures, how and when to 
communicate with the vessel captain, and reporting requirements in this 
subpart. Visual observers may be third-party observers (i.e., NMFS-
approved PSOs) or trained crew members, as defined in paragraph (b)(1) 
of this section;
    (4) LOA Holder must continuously monitor the U.S. Coast Guard VHF 
Channel 16 at the onset of transiting through the duration of 
transiting, over which North Atlantic right whale sightings are 
broadcasted. At the onset of transiting and at least once every 4 
hours, vessel operators and/or trained crew member(s) must also monitor 
the Project's Situational Awareness System, WhaleAlert, and relevant 
NOAA information systems such as the Right Whale Sighting Advisory 
System (RWSAS) for the presence of North Atlantic right whales;
    (5) All LOA Holder's vessels, regardless of size, must transit at 
10 kn (11.5 mph) or less from November 1-April 30 in the specified 
geographic region;
    (6) All LOA Holder's vessels, regardless of size, must travel 10 kn 
(11.5 mph) or less in any Seasonal Management Area (SMA) or active Slow 
Zones (i.e., DMAs or acoustically triggered slow zone);
    (7) LOA Holder's vessels, regardless of size, must immediately 
reduce speed to 10 kn or less for at least 24 hours when a North 
Atlantic right whale is sighted at any distance by any project-related 
personnel or acoustically detected by any project-related PAM system. 
Each subsequent observation or acoustic detection in the project area 
shall trigger an additional 24-hour period. If a North Atlantic right 
whale is reported via any of the monitoring systems (refer back to 
(b)(4) of this section) within 10 kilometers (km; 6.2 miles (mi)) of a 
transiting vessel(s), that vessel must operate at 10 knots (kn; 11.5 
miles per hour (mph)) or less for 24 hours following the reported 
detection;
    (8) LOA Holder's vessels, regardless of size, must immediately 
reduce speed to 10 kn or less when any large whale (other than a North 
Atlantic right whale) or large assemblages of cetaceans is observed 
within 500 m (1,640 ft) of an underway vessel;
    (9) If LOA Holder's vessel(s) are traveling at speeds greater than 
10 kn (i.e., no speed restrictions are enacted) in a transit corridor 
from a port to the Lease Area (or return), in addition to the required 
dedicated visual observer, LOA Holder must monitor the transit corridor 
in real-time with PAM prior to and during transits. If a North Atlantic 
right whale is detected via visual observation or PAM within or 
approaching the transit corridor, all crew transfer vessels must travel 
at 10 kn (11.5 mph) or less for 24 hours following the detection. Each 
subsequent detection shall trigger a 24-hour reset. A slowdown in the 
transit corridor expires when there has been no further visual or 
acoustic detection in the transit corridor in the past 24 hours;
    (10) LOA Holder's vessels must maintain a minimum separation 
distance of 100 m (328 ft) from sperm whales and non-North Atlantic 
right whale baleen whales. If one of these species is sighted within 
100 m of a transiting vessel, LOA Holder's vessel must turn away from 
the whale(s), reduce speed, and shift the engine(s) to neutral. Engines 
must not be engaged until the whale has moved outside of the vessel's 
path and beyond 100 m; (328 ft);
    (11) LOA Holder's vessels must maintain a minimum separation 
distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds 
with an exception made for those that approach the vessel (i.e., bow-
riding dolphins). If a delphinid cetacean or pinniped is sighted within 
50 m (164 ft) of a transiting vessel, LOA Holder's vessel must turn 
away from the animal(s), shift the engine to neutral, with an exception 
made for those that approach the vessel (e.g., bow-riding dolphins). 
Engines must not be engaged until the animal(s) has moved outside of 
the vessel's path and beyond 50 m;
    (12) When a marine mammal(s) is sighted while LOA Holder's 
vessel(s) is transiting, the vessel must take action as necessary to 
avoid violating the relevant separation distances (e.g., attempt to 
remain parallel to the animal's course, slow down, and avoid abrupt 
changes in direction until the animal has left the area). This measure 
does not apply to any vessel towing gear or any situation where 
respecting the relevant separation distance would be unsafe (i.e., any 
situation where the vessel is navigationally constrained);
    (13) LOA Holder's vessels underway must not divert or alter course 
to approach any marine mammal;
    (14) LOA Holder must check, daily, for information regarding the 
establishment of mandatory or voluntary vessel strike avoidance areas 
(i.e., DMAs, SMAs, Slow Zones) and any information regarding North 
Atlantic right whale sighting locations; and
    (15) LOA Holder must submit a Marine Mammal Vessel Strike Avoidance 
Plan to NMFS Office of Protected Resources for review and approval at 
least 180 days prior to the planned start of vessel activity if vessels 
will operate over 10 kn (11.5 mph). The plan must provide details on 
the vessel-based observer and PAM protocols for transiting vessels. If 
a plan is not submitted or approved by NMFS prior to vessel operations, 
all project vessels transiting, year-round, must travel at speeds of 10 
kn (11.5 mph) or less. LOA Holder must comply with the approved Marine 
Mammal Vessel Strike Avoidance Plan.
    (c) WTG, OSS, Met tower foundation installation. LOA Holder must 
comply with the following mitigation measures during impact pile 
driving activities associated with the installation of WTG, OSS, and 
Met tower foundations unless compliance is not practicable due to 
imminent risk of injury or loss of life to an individual, risk of 
damage to a vessel that creates risk of injury or loss of life for 
individuals, or the lead engineer determines there is risk of pile 
refusal or pile instability.
    (1) Impact pile driving (i.e., foundation and Met Tower 
installation) must not occur December 1 through April 30;
    (2) Monopiles must be no larger than 11 m (36.1 ft) in diameter. No 
more than one monopile may be installed per day, unless otherwise 
approved in writing by NMFS. Pin piles for the OSSs must be no larger 
than 3 m in diameter. No more than four 3-m pin piles may be installed 
per day. Met tower pin piles must be no larger than 1.8 m in diameter. 
No more than two 1.8-m pin piles may be installed per day. The minimum 
amount of hammer energy necessary to effectively and safely install and 
maintain the integrity of the piles must be used. The impact hammer 
rating must not exceed 4,400 kJ;
    (3) LOA Holder must not initiate pile driving earlier than 1 hour 
prior to civil sunrise or later than 1.5 hours prior to civil sunset, 
and may only continue pile driving into darkness if stopping operations 
represents a risk to human health, safety, and/or pile stability, 
unless the LOA Holder submits, and NMFS approves, an Alternative 
Monitoring Plan, which would allow pile driving to begin after daylight 
hours have ended. Until this is submitted, reviewed, and approved by 
NMFS, LOA Holder may not begin any new pile driving outside of the 
daylight hours previously defined in this subsection;

[[Page 84719]]

    (4) Soft-start must occur at the beginning of impact driving and at 
any time following a cessation of impact pile driving of 30 minutes or 
longer. Soft-start involves initiating hammer operation at a reduced 
energy level (relative to full operating capacity) followed by a 
waiting period. The LOA Holder must comply with a soft-start protocol 
as described in the approved Pile Driving Plan;
    (5) LOA Holder must implement clearance and shutdown zones, which 
must be measured using the radial distance around the pile being 
driven;
    (6) LOA Holder must utilize PSO(s) and PAM operator(s), as 
described in Sec.  217.345. At least three on-duty PSOs must be 
stationed and observing on the foundation installation vessel/platform. 
A minimum of three PSOs must be active on each of the two dedicated PSO 
vessels. On-duty PSOs must be located at the best vantage point(s) on 
any platform, as determined by the Lead PSO, in order to obtain 360-
degree visual coverage of the entire clearance and shutdown zones 
around the activity area, and as much of the Level B harassment zone as 
possible. Concurrently, PAM operator(s) must be actively monitoring for 
marine mammals with PAM 60 minutes before, during, and 30 minutes after 
pile driving in accordance with a NMFS-approved PAM Plan;
    (7) PSOs must visually monitor clearance zones for marine mammals 
for a minimum of 60 minutes prior to commencing pile driving. The 
entire minimum visibility zone must be visible (i.e., not obscured by 
dark, rain, fog, etc.) for a full 60 minutes immediately prior to 
commencing pile driving. If PSOs cannot visually monitor the minimum 
visibility zone prior to foundation pile driving at all times), pile 
driving operations must not commence;
    (8) All clearance zones must be confirmed to be free of marine 
mammals for 30 minutes immediately prior to the beginning of soft-start 
procedures. If a marine mammal is detected within or about to enter the 
applicable clearance zones, prior to the beginning of soft-start 
procedures, impact pile driving must be delayed until the animal has 
been visually observed exiting the clearance zone or until a specific 
time period has elapsed with no further sightings. The specific time 
periods are 15 minutes for small odontocetes and pinnipeds, and 30 
minutes for all other species. PAM operators must immediately 
communicate all detections of marine mammals at any distance to the 
Lead PSO, including any determination regarding species identification, 
distance, and bearing and the degree of confidence in the 
determination;
    (9) For North Atlantic right whales, any visual observation or 
acoustic detection within the PAM monitoring zone must trigger a delay 
to the commencement of pile driving. The clearance zone may only be 
declared clear if no North Atlantic right whale acoustic or visual 
detections have occurred within the clearance zone during the 60-minute 
monitoring period. If pile driving has been shut down due to the 
presence of a North Atlantic right whale, pile driving may not restart 
until the North Atlantic right whale has neither been visually nor 
acoustically detected for 30 minutes;
    (10) If a marine mammal is detected (visually or acoustically) 
entering or within the respective shutdown zone after pile driving has 
begun, the PSO or PAM operator must call for a shutdown of pile driving 
and LOA Holder must stop pile driving immediately, unless shutdown is 
not practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals, or the lead engineer determines there is 
pile refusal or pile instability. If pile driving is not shut down in 
one of these situations, LOA Holder must reduce hammer energy to the 
lowest level practicable and the reason(s) for not shutting down must 
be documented and reported to NMFS Office of Protected Resources within 
the applicable monitoring reports (e.g., weekly, monthly) (see Sec.  
217.345);
    (11) If pile driving has been shut down due to the presence of a 
marine mammal other than a North Atlantic right whale, pile driving 
must not restart until either the marine mammal(s) has voluntarily left 
the specific clearance zones and has been visually or acoustically 
confirmed beyond that clearance zone, or, when specific time periods 
have elapsed with no further sightings or acoustic detections have 
occurred. The specific time periods are 15 minutes for small 
odontocetes and pinnipeds and 30 minutes for all other marine mammal 
species. In cases where these criteria are not met, pile driving may 
restart only if necessary to maintain pile stability at which time LOA 
Holder must use the lowest hammer energy practicable to maintain 
stability;
    (12) LOA Holder must deploy at least two functional noise abatement 
systems that reduce noise levels to the modeled harassment isopleths, 
assuming 10-dB attenuation, during all impact pile driving and comply 
with the following measures:
    (i) A single bubble curtain must not be used;
    (ii) Any bubble curtain(s) must distribute air bubbles using an air 
flow rate of at least 0.5 m\3\/(minute*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must adjust the air supply and operating pressure such that the maximum 
possible sound attenuation performance of the bubble curtain(s) is 
achieved;
    (iii) The lowest bubble ring must be in contact with the seafloor 
for the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact;
    (iv) No parts of the ring or other objects may prevent full 
seafloor contact with a bubble curtain ring;
    (v) Construction contractors must train personnel in the proper 
balancing of airflow to the bubble curtain ring. LOA Holder must 
provide NMFS Office of Protected Resources with a bubble curtain 
performance test and maintenance report for review. For piles for which 
thorough sound field verification (SFV) is carried out, this report 
must be submitted as soon as it is available but no later than when the 
thorough interim SFV report is submitted for the respective pile. 
Performance reports for piles with abbreviated SFV must be submitted 
with the weekly pile driving reports. Additionally, a full maintenance 
check (e.g., manually clearing holes) must occur prior to each pile 
being installed. LOA Holder must develop and implement a maintenance 
plan that identifies the frequency of hose inspection, flushing, 
pressure tests, and re-drilling and that is designed to minimize the 
potential for sediment clogging to affect bubble curtain performance. 
Adjustments to the frequency of these maintenance steps must be made as 
necessary to ensure optimal performance of the bubble curtain system; 
and
    (vi) Corrections to the bubble ring(s) to meet the performance 
standards in paragraph (c)(12) of this section must occur prior to 
impact pile driving of monopiles, 3-m (9.8 ft) pin piles, and 1.8-m 
(5.9 ft) pin piles. If LOA Holder uses a noise mitigation device in 
addition to the bubble curtain, LOA Holder must maintain similar 
quality control measures as described in this paragraph (c)(11) of this 
section.
    (13) LOA Holder must implement PAM in accordance with the NMFS-

[[Page 84720]]

approved PAM Plan, as described in paragraph (c)(18) of this section. 
The PAM system components (i.e., acoustic buoys) must not be placed 
closer than 1 km (3,280 ft) to the pile being driven so that the 
activities do not mask the PAM system. LOA Holder must demonstrate and 
prove the detection range of the system they plan to deploy while 
considering potential masking from concurrent pile driving and vessel 
noise. The PAM system must be designed to detect all marine mammals to 
the maximum extent practicable, maximize baleen whale detections, and 
must be capable of detecting North Atlantic right whales within the PAM 
monitoring zone;
    (14) LOA Holder must conduct thorough SFV measurements during pile 
driving activities associated with the installation of, at minimum, the 
first three monopile foundations, the first three full jacket 
foundations (inclusive of all pin piles for a specific jacket 
foundation), and the first foundation for any foundation scenarios that 
were modeled for the exposure analysis (e.g., rated hammer energy, 
number of strikes, representative location) that does not fall into one 
of the previously listed categories for each of the three construction 
campaigns. Thorough SFV measurements must be conducted as follows:
    (i) SFV measurements must be made at a minimum of four distances 
from the pile(s) being driven, along a single transect, in the 
direction of lowest transmission loss (i.e., projected lowest 
transmission loss coefficient), including, but not limited to, 750 m 
(2,460 ft) and three additional ranges selected such that measurement 
of Level A harassment and Level B harassment isopleths are accurate, 
feasible, and avoids extrapolation. At least one additional measurement 
at an azimuth 90 degrees from the array at 750 m (2,460 ft) must be 
made. At each measurement location, there must be a near bottom and 
mid-water column hydrophone (measurement systems);
    (ii) The recordings must be continuous throughout the duration of 
pile driving for each foundation;
    (iii) The SFV measurement systems must have a sensitivity 
appropriate for the expected sound levels from pile driving received at 
the nominal ranges throughout the installation of the pile. The 
frequency range of SFV measurement systems must cover the range of at 
least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems 
must be designed to have omnidirectional sensitivity so that the 
broadband received level of all pile driving exceeds the system noise 
floor by at least 10 dB. The dynamic range of the SFV measurement 
system must be sufficient such that at each location, the signals 
prevent poor signal-to-noise ratios for low amplitude signals and avoid 
clipping, nonlinearity, and saturation for high amplitude signals;
    (iv) All hydrophones used in SFV measurements systems are required 
to have undergone a full system, traceable laboratory calibration 
conforming to International Electrotechnical Commission (IEC) 60565, or 
an equivalent standard procedure, from a factory or accredited source 
to ensure the hydrophone receives accurate sound levels, at a date not 
to exceed 2 years before deployment. Additional in-situ calibration 
checks using a pistonphone are required to be performed before and 
after each hydrophone deployment. If the measurement system employs 
filters via hardware or software (e.g., high-pass, low-pass, etc.), 
which is not already accounted for by the calibration, the filter 
performance (i.e., the filter's frequency response) must be known, 
reported, and the data corrected before analysis;
    (v) LOA Holder must be prepared with additional equipment 
(hydrophones, recording devices, hydrophone calibrators, cables, 
batteries, etc.), which exceeds the amount of equipment necessary to 
perform the measurements, such that technical issues can be mitigated 
before measurement; and
    (vi) LOA Holder must submit interim SFV reports within 48 hours 
after each foundation is measured (see Sec.  217.345(g) for interim and 
final reporting requirements).
    (15) For thorough SFV on monopile and jacket foundations:
    (i) During thorough SFV, installation of the next foundation (of 
the same type/foundation method) may not proceed until LOA Holder has 
reviewed the initial results from the thorough SFV and determined that 
there were no exceedances of any distances to the identified thresholds 
based on modeling assuming 10 dB attenuation. Subsequent SFV 
measurements are also required should larger piles be installed or if 
additional monopiles are driven that may produce louder sound fields 
than those previously measured (e.g., higher hammer energy, greater 
number of strikes, etc.);
    (ii) If any of the thorough SFV measurements from any foundation 
(monopile or jacket) indicate that the distances to the NMFS' marine 
mammal Level A harassment or Level B harassment thresholds for marine 
mammals (peak or cumulative) are greater than the modeled distances 
(assuming 10 dB attenuation), before the next foundation is installed, 
LOA Holder must notify NMFS by email within 24 hours of reviewing the 
thorough SFV measurements as well as identify and propose for review 
and concurrence: additional, modified, and/or alternative noise 
attenuation measures or operational changes that present a reasonable 
likelihood of reducing sound levels to the modeled distances on 
subsequent foundations; provide a written explanation to NMFS Office of 
Protected Resources supporting that determination and requesting 
concurrence to proceed; and, following NMFS Office of Protected 
Resource's concurrence, deploy those additional measures or 
modifications on any subsequent foundation of the same pile type/
installation methodology that are installed;
    (iii) LOA Holder must also increase the clearance and shutdown 
zones for subsequent piles of the same type (e.g., if triggered by SFV 
results for a monopile, for the next monopile) so that they are at 
least the size of the distances to those thresholds as indicated by 
SFV. For every 1,500 m that a marine mammal clearance or shutdown zone 
is expanded, additional PSOs must be deployed from additional 
platforms/vessels to ensure adequate and complete monitoring of the 
expanded shutdown and/or clearance zone. LOA Holder must deploy any 
additional PSOs consistent with the approved Marine Mammal Monitoring 
Plan in consideration of the size of the new zones and the species that 
must be monitored;
    (iv) Following installation of a pile with additional, alternative, 
or modified noise attenuation measures or operational changes if 
thorough SFV results indicate that sound fields are within Level A 
harassment and B harassment thresholds, assuming 10 dB attenuation, 
thorough SFV must be conducted on two additional piles of the same 
type/installation method (for a total of at least three piles with 
consistent noise attenuation measures). If the thorough SFV results 
from all three of those piles are within the distances to isopleths of 
concern modeled assuming 10 dB attenuation, then LOA Holder must 
continue to implement the approved additional, alternative, or modified 
noise attenuation measures/operational changes. Use of the expanded 
clearance and shutdown zones must continue for additional piles until 
LOA Holder requests and receives concurrence from NMFS Office of 
Protected Resources and Greater Atlantic Regional Fisheries

[[Page 84721]]

Office (GARFO) to revert to the original clearance and shutdown zones;
    (v) 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 
the marine mammal harassment thresholds are greater than those modeled 
assuming 10 dB attenuation, LOA Holder must consult with NMFS Office of 
Protected Resources to evaluate the circumstances before additional 
piles are installed; and
    (vi) If, after additional measurements conducted pursuant to 
requirements of paragraph (14)(i) of this section, acoustic 
measurements indicate that ranges to the Level A harassment and Level B 
harassment thresholds are less than the ranges predicted by modeling 
(assuming 10-dB attenuation), LOA Holder may request a modification of 
the clearance and shutdown zones from the NMFS Office of Protected 
Resources. For NMFS Office of Protected Resources to consider a 
modification request for reduced zone sizes, LOA Holder must have 
conducted SFV measurements on an additional three foundations (for 
either/or monopile and jackets) and ensure that subsequent foundations 
would be installed under conditions that are predicted to produce 
smaller harassment zones than those modeled assuming 10 dB of 
attenuation.
    (16) Abbreviated SFV measurements must be conducted on the 
remaining piles for which thorough SFV is not conducted. Abbreviated 
SFV must be conducted as follows:
    (i) SFV measurements must be made at a single acoustic recorder, 
consisting of a near-bottom and mid-water hydrophone, at approximately 
750 m from the pile being driven, in the direction of lowest 
transmission loss to record sounds throughout the duration of all pile 
driving of each foundation. Reports of abbreviated SFV monitoring must 
be included in the weekly pile driving reports;
    (ii) The abbreviated SFV data collected will be used to compare the 
noise levels defined as a result of thorough SFV;
    (iii) Abbreviated SFV monitoring duration and equipment must comply 
with the conditions specified in paragraphs (c)(14)(ii) through (14)(v) 
of this section;
    (iv) LOA Holder must review abbreviated SFV results for each pile 
within 24 hours of completion of the foundation installation. If 
measured levels at 750 m did not exceed the expected levels defined 
during thorough SFV, LOA Holder does not need to take any additional 
action. If measured levels from abbreviated SFV for any pile are 
greater than expected levels (as defined by thorough SFV), LOA Holder 
must evaluate the available information from the pile installation to 
determine if there is an identifiable cause of the greater than 
expected sound levels (i.e., a failure of the noise attenuation 
system), identify and implement corrective action, and report this 
information (inclusive of an explanation of the suspected or identified 
cause) to NMFS Office of Protected Resources and Greater Atlantic 
Regional Fisheries Office within 48 hours of completion of the 
installation of the pile, during which the greater than expected sound 
levels occurred. If LOA Holder can demonstrate that this greater than 
expected sound level was the result of a failure of the noise 
attenuation system (e.g., loss of a generator supporting a bubble 
curtain such that one bubble curtain failed during pile driving) that 
can be remedied in a way that returns the noise attenuation system to 
pre-failure conditions, or if there is another satisfactory explanation 
for the increase in sound that is not expected to be repeated for 
subsequent piles, LOA Holder can request concurrence from NMFS to 
proceed without thorough SFV monitoring that would otherwise be 
required within 72 hours. LOA Holder is required to remedy any such 
failure of the noise attenuation system prior to carrying out any 
additional pile driving;
    (v) If results of abbreviated SFV monitoring for any pile exceed 
the expected noise levels at 750 m established through the initial 
thorough SFV, LOA Holder must resume thorough SFV monitoring (as 
described in paragraph (c)(15)(i) of this section) for installation of 
the same foundation type and installation method within 72 hours after 
the completion of pile driving with an exceedance. LOA Holder can 
request concurrence from NMFS Office of Protected Resources and Greater 
Atlantic Regional Fisheries Office to resume abbreviated SFV following 
submission of an interim report from thorough SFV that demonstrates 
ranges to the Level A harassment and Level B harassment thresholds 
within expected values (assuming 10 dB attenuation). LOA Holder may 
automatically resume abbreviated SFV monitoring if three consecutive 
thorough SFV reports indicate ranges to the Level A harassment and 
Level B harassment thresholds are within modeled distances (assuming 10 
dB attenuation); and
    (vi) If results from any thorough SFV monitoring triggered by 
results from abbreviated SFV indicate that ranges to the Level A 
harassment and Level B harassment thresholds (assuming 10 dB 
attenuation) are larger than expected values, NMFS Office of Protected 
Resources and Greater Atlantic Regional Fisheries Office will meet 
within 3 business days to discuss the results of SFV monitoring, the 
severity of exceedance of distances to identified isopleths of concern, 
the species affected, and 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 rulemaking. 
Implementation of additional measures to reduce pile driving noise and/
or additional thorough SFV may also be required.
    (17) LOA Holder must conduct SFV measurements during turbine 
operations to estimate turbine operational source levels, in accordance 
with a NMFS-approved SFV Plan. SFV must be conducted in the same manner 
as previously described in paragraphs (c)(14)(ii) and (iii) of this 
section, with appropriate adjustments to measurement distances, number 
of hydrophones, and hydrophone sensitivities being made, as necessary.
    (18) LOA Holder must submit a SFV Plan to NMFS Office of Protected 
Resources for review and approval at least 180 days prior to planned 
start of foundation installation activities and abide by the Plan if 
approved. At minimum, the SFV Plan must describe how LOA Holder would 
ensure that the first three monopile foundation/entire jacket 
foundation (inclusive of all pin piles for a jacket foundation) 
installation sites selected for SFV measurements are representative of 
the rest of the monopile and/or jacket foundation installation sites 
such that future pile installation events are anticipated to produce 
similar sound levels to those piles measured. In the case that these 
sites/scenarios are not determined to be representative of all other 
pile installation sites, LOA Holder must include information in the SFV 
Plan on how additional sites/scenarios would be selected for SFV 
measurements. The SFV Plan must also include methodology for 
collecting, analyzing, and preparing SFV measurement data for 
submission to NMFS Office of Protected Resources and describe how the 
effectiveness of the sound attenuation methodology would be evaluated 
based on the results. SFV for pile driving may not occur until NMFS 
approves the SFV Plan for this activity;
    (19) LOA Holder must submit a Foundation Installation Pile Driving 
Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for 
review and approval at least 180 days prior to the planned start of 
pile driving

[[Page 84722]]

and abide by the Plan if approved. LOA Holder must obtain both NMFS 
Office of Protected Resources and NMFS GARFO Protected Resources 
Division's concurrence with this plan prior to the start of any pile 
driving. The plan must include a description of all monitoring 
equipment and PAM and PSO protocols (including number and location of 
PSOs) for all pile driving. No foundation pile installation can occur 
without NMFS' approval of the plan; and
    (20) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM 
Plan) to NMFS Office of Protected Resources for review and approval at 
least 180 days prior to the planned start of foundation installation 
activities (impact pile driving) and abide by the PAM Plan if approved. 
The PAM Plan must include a description of all proposed PAM equipment 
and hardware, the calibration data, bandwidth capacity, address how the 
proposed PAM must follow standardized measurement, processing methods, 
reporting metrics, and metadata standards for offshore wind as 
described in NOAA and BOEM Minimum Recommendations for Use of Passive 
Acoustic Listening Systems in Offshore Wind Energy Development 
Monitoring and Mitigation Programs (2021). The PAM Plan must describe 
all proposed PAM equipment, procedures, and protocols including proof 
that vocalizing North Atlantic right whales will be detected within the 
clearance and shutdown zones. No pile installation can occur if LOA 
Holder's PAM Plan does not receive approval from NMFS Office of 
Protected Resources and NMFS GARFO Protected Resources Division.
    (21) In the event of a cetacean live stranding (or near-shore 
atypical milling) event within 50 km of the pile driving activities, 
where the NMFS Stranding Network is engaged in herding or other 
interventions to return animals to the water, NMFS will advise of the 
need to implement shutdown procedures for all active pile driving 
activities operating within 50 km of the stranding. Shutdown procedures 
for live stranding or milling cetaceans include the following:
    (i) If at any time, the marine mammal(s) die or are euthanized, or 
if herding/intervention efforts are stopped, NMFS will advise that the 
shutdown around the animals' location is no longer needed;
    (ii) Otherwise, shutdown procedures will remain in effect until 
NMFS determines and advises that all live animals involved have left 
the area (either of their own volition or following an intervention); 
and
    (iii) If further observations of the marine mammals indicate the 
potential for re-stranding, additional coordination will be required to 
determine what measures are necessary to minimize that likelihood 
(e.g., extending the shutdown or moving operations farther away) and to 
implement those measures as appropriate.
    (d) HRG surveys. The following requirements apply to HRG surveys 
operating sub-bottom profilers (SBP) (i.e., boomers, sparkers, and 
Compressed High Intensity Radiated Pulse (CHIRPS)):
    (1) LOA Holder must establish and implement clearance and shutdown 
zones for HRG surveys using visual monitoring, as described in this 
paragraph (d);
    (2) LOA Holder is required to have at least one PSO on active duty 
per HRG vessel during HRG surveys that are conducted during daylight 
hours (i.e., from 30 minutes prior to civil sunrise through 30 minutes 
following civil sunset) and at least two PSOs on active duty per vessel 
during HRG surveys that are conducted during nighttime hours;
    (3) SBPs (hereinafter referred to as ``acoustic sources'') must be 
deactivated when not acquiring data or preparing to acquire data, 
except as necessary for testing. Acoustic sources must be used at the 
lowest practicable source level to meet the survey objective, when in 
use, and must be turned off when they are not necessary for the survey;
    (4) LOA Holder is required to ramp-up acoustic sources prior to 
commencing full power, which involves initiating source operation at a 
reduced energy level (relative to full operating capacity) followed by 
a waiting period, unless the equipment operates on a binary on/off 
switch. LOA Holder is also required to ensure visual clearance zones 
are observable (e.g., not obscured from observation by darkness, rain, 
fog, etc.) and clear of marine mammals, as determined by the Lead PSO, 
for at least 30 minutes immediately prior to the initiation of survey 
activities using acoustic sources specified in the LOA. Ramp-up and 
activation must be delayed if a marine mammal(s) enters its respective 
shutdown zone. Ramp-up and activation may only be reinitiated if the 
animal(s) has been observed exiting its respective shutdown zone or 
until 15 minutes for small odontocetes and pinnipeds, and 30 minutes 
for all other species, has elapsed with no further sightings;
    (5) Prior to a ramp-up procedure starting or activating acoustic 
sources, the acoustic source operator (operator) must notify a 
designated PSO of the planned start of ramp-up as agreed upon with the 
Lead PSO. The notification time should not be less than 60 minutes 
prior to the planned ramp-up or activation in order to allow the PSOs 
time to monitor the clearance zone(s) for 30 minutes prior to the 
initiation of ramp-up or activation (pre-start clearance). During this 
30-minute pre-start clearance period, the entire applicable clearance 
zones must be visible, except as indicated in paragraph (d)(11) of this 
section;
    (6) Ramp-ups must be scheduled so as to minimize the time spent 
with the source activated;
    (7) A PSO conducting pre-start clearance observations must be 
notified again immediately prior to reinitiating ramp-up procedures and 
the operator must receive confirmation from the PSO to proceed;
    (8) LOA Holder must implement a 30-minute clearance period of the 
clearance zones immediately prior to the commencing of the survey or 
when there is more than a 30-minute break in survey activities or PSO 
monitoring. A clearance period is a period when no marine mammals are 
detected in the relevant zone;
    (9) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up or acoustic surveys may not begin until 
the animal(s) has been observed voluntarily exiting its respective 
clearance zone or until a specific time period has elapsed with no 
further sighting. The specific time period is 15 minutes for small 
odontocetes and pinnipeds, and 30 minutes for all other species;
    (10) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(infrared (IR)/thermal camera), and the Lead PSO has determined that 
the clearance zones are clear of marine mammals, survey operations may 
commence (i.e., no delay is required) despite periods of inclement 
weather and/or loss of daylight. Ramp-up may occur at times of poor 
visibility, including nighttime, if effective visual monitoring has 
occurred with no detections of marine mammals in the 30 minutes prior 
to beginning ramp-up;
    (11) Once the survey has commenced, LOA Holder must shut down 
acoustic sources if a marine mammal enters a respective shutdown zone. 
In cases when the shutdown zones become obscured for brief periods due 
to inclement weather, survey operations may continue (i.e., no shutdown 
is required) so long as no marine mammals have been detected. The 
shutdown requirement does not apply to small delphinids of the 
following genera:

[[Page 84723]]

Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is 
uncertainty regarding the identification of a marine mammal species 
(i.e., whether the observed marine mammal belongs to one of the 
delphinid genera for which shutdown is waived), the PSOs must use their 
best professional judgment in making the decision to call for a 
shutdown. Shutdown is required if a delphinid that belongs to a genus 
other than those specified in this paragraph (d)(11) is detected in the 
shutdown zone;
    (12) If an acoustic source has been shut down due to the presence 
of a marine mammal, the use of an acoustic source may not commence or 
resume until the animal(s) has been confirmed to have left the Level B 
harassment zone or until a full 15 minutes (for small odontocetes and 
seals) or 30 minutes (for all other marine mammals) have elapsed with 
no further sighting;
    (13) LOA Holder must immediately shut down any acoustic source if a 
marine mammal is sighted entering or within its respective shutdown 
zones. If there is uncertainty regarding the identification of a marine 
mammal species (i.e., whether the observed marine mammal belongs to one 
of the delphinid genera for which shutdown is waived), the PSOs must 
use their best professional judgment in making the decision to call for 
a shutdown. Shutdown is required if a delphinid that belongs to a genus 
other than those specified in paragraph (d)(11) of this section is 
detected in the shutdown zone; and
    (14) If an acoustic source is shut down for a period longer than 30 
minutes, all clearance and ramp-up procedures must be initiated. If an 
acoustic source is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, acoustic sources may 
be activated again without ramp-up only if PSOs have maintained 
constant observation and no additional detections of any marine mammal 
occurred within the respective shutdown zones.
    (e) Fisheries monitoring surveys. The following measures apply to 
fishery monitoring surveys:
    (1) Survey gear must be deployed as soon as possible once the 
vessel arrives on station. Gear must not be deployed if there is a risk 
of interaction with marine mammals. Gear may be deployed after 15 
minutes of no marine mammal sightings within 1 nautical mile (nmi; 
1,852 m) of the sampling station;
    (2) LOA Holder and its cooperating institutions, contracted 
vessels, or commercially hired captains must implement the following 
``move-on'' rule: If marine mammals are sighted within 1 nmi(1,852 m) 
of the planned location and 15 minutes before gear deployment, then LOA 
Holder and its cooperating institutions, contracted vessels, or 
commercially hired captains, as appropriate, must move the vessel away 
from the marine mammal to a different section of the sampling area. If, 
after moving on, marine mammals are still visible from the vessel, LOA 
Holder and its cooperating institutions, contracted vessels, or 
commercially hired captains must move again or skip the station;
    (3) If a marine mammal is at risk of interacting with or becoming 
entangled in the gear after the gear is deployed or set, all gear must 
be immediately removed from the water. If marine mammals are sighted 
before the gear is fully removed from the water, the vessel must slow 
its speed and maneuver the vessel away from the animals to minimize 
potential interactions with the observed animal;
    (4) LOA Holder must maintain visual marine mammal monitoring effort 
during the entire period of time that gear is in the water (i.e., 
throughout gear deployment, fishing, and retrieval) as well as for 15 
minutes prior to deploying gear and for 15 minutes after haul back;
    (5) All fisheries monitoring gear must be fully cleaned and 
repaired (if damaged) before each use/deployment;
    (6) LOA Holder's fixed gear must comply with the Atlantic Large 
Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries 
monitoring surveys;
    (7) All gear must be emptied as close to the deck/sorting area and 
as quickly as possible after retrieval;
    (8) During any survey that uses vertical lines, buoy lines must be 
weighted and must not float at the surface of the water and all 
groundlines must consist of sinking lines. All groundlines must be 
composed entirely of sinking lines. Buoy lines must utilize weak links. 
Weak links must break cleanly leaving behind the bitter end of the 
line. The bitter end of the line must be free of any knots when the 
weak link breaks. Splices are not considered to be knots. The 
attachment of buoys, toggles, or other floatation devices to 
groundlines is prohibited;
    (9) All in-water survey gear, including buoys, must be properly 
labeled with the scientific permit number or identification as LOA 
Holder's research gear. All labels and markings on the gear, buoys, and 
buoy lines must also be compliant with the Atlantic Large Whale Take 
Reduction Plan regulations at 50 CFR 229.32, and all buoy markings must 
comply with instructions received by the GARFO Protected Resources 
Division;
    (10) All survey gear must be removed from the water whenever not in 
active survey use (i.e., no wet storage); and
    (11) All reasonable efforts, that do not compromise human safety, 
must be undertaken to recover gear.


Sec.  217.345  Monitoring and reporting requirements.

    (a) PSO and PAM operator qualifications. LOA Holder must implement 
the following measures applicable to PSOs and PAM operators:
    (1) LOA Holder must use independent, NMFS-approved PSOs and PAM 
operators, meaning that the PSOs and PAM operators must be employed by 
a third-party observer provider, must have no tasks other than to 
conduct observational effort, collect data, and communicate with and 
instruct relevant crew with regard to the presence of protected species 
and mitigation requirements;
    (2) All PSOs and PAM operators must have successfully attained a 
bachelor's degree 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 a suitable amount of alternate 
experience. Requests for such a waiver must be submitted to NMFS Office 
of Protected Resources and must include written justification 
containing alternative experience. Alternate experience that may be 
considered includes, but is not limited to previous work experience 
conducting academic, commercial, or government-sponsored marine mammal 
visual and/or acoustic surveys, or previous work experience as a PSO/
PAM operator;
    (3) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving targets 
on the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable); ability to conduct field 
observations and collect data according to the assigned protocols; 
sufficient training, orientation, or experience with the construction 
operation to provide for personal safety during observations; writing 
skills sufficient to document observations, including but not limited 
to, the number and species of marine mammals observed, the dates and 
times when in-water construction activities were conducted, the dates 
and time when in-water construction activities were suspended to avoid 
potential incidental take of marine mammals from construction noise 
within a defined

[[Page 84724]]

shutdown zone, and marine mammal behavior; and the ability to 
communicate orally, by radio, or in-person, with project personnel to 
provide real-time information on marine mammals observed in the area;
    (4) All PSOs must be trained in northwestern Atlantic Ocean marine 
mammal identification and behaviors and must be able to conduct field 
observations and collect data according to assigned protocols. 
Additionally, PSOs must have the ability to work with all required and 
relevant software and equipment necessary during observations (as 
described in paragraphs (b)(6) and (8) of this section;
    (5) All PSOs and PAM operators must successfully complete a 
relevant training course within the last 5 years, including obtaining a 
certificate of course completion that must be submitted to NMFS. This 
requirement is waived for any PSOs and PAM operators that completed a 
relevant training course more than five years prior to seeking approval 
but have been working consistently as a PSO or PAM operator within the 
past five years;
    (6) PSOs are responsible for obtaining NMFS' approval. NMFS may 
approve PSOs as conditional or unconditional. A conditionally-approved 
PSO may be one who has completed training in the last 5 years but has 
not yet attained field experience. An unconditionally approved PSO is 
one who has completed training within the last 5 years and attained the 
necessary experience (i.e., demonstrate experience with monitoring for 
marine mammals at clearance and shutdown zone sizes similar to those 
produced during the respective activity). Lead PSOs must be 
unconditionally approved and have a minimum of 90 days in a 
northwestern Atlantic Ocean offshore environment performing the role 
(either visual or acoustic), with the conclusion of the most recent 
relevant experience not more than 18 months previous. A conditionally 
approved PSO must be paired with an unconditionally approved PSO;
    (7) PSOs for HRG surveys may be unconditionally or conditionally 
approved. PSOs for foundation installation activities must be 
unconditionally approved;
    (8) At least one on-duty PSO and PAM operator, where applicable, 
for each activity (e.g., impact pile driving, vibratory pile driving, 
and HRG surveys) must be designated as the Lead PSO or Lead PAM 
operator;
    (9) LOA Holder must submit previously approved PSOs and PAM 
operators to NMFS Office of Protected Resources for review and 
confirmation of their approval for specific roles at least 30 days 
prior to commencement of the activities requiring PSOs/PAM operators or 
15 days prior to when new PSOs/PAM operators are required after 
activities have commenced;
    (10) For prospective PSOs and PAM operators not previously 
approved, or for PSOs and PAM operators whose approval is not current, 
LOA Holder must submit resumes for approval at least 60 days prior to 
PSO and PAM operator use. Resumes must include information related to 
relevant education, experience, and training, including dates, 
duration, location, and description of prior PSO or PAM operator 
experience. Resumes must be accompanied by relevant documentation of 
successful completion of necessary training;
    (11) PAM operators are responsible for obtaining NMFS approval. To 
be approved as a PAM operator, the person must meet the following 
qualifications: The PAM operator must have completed a PAM operator 
training course and demonstrate prior experience using PAM software, 
equipment, and real-time acoustic detection systems. They must 
demonstrate that they 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. PAM operators must be independent 
observers (i.e., not construction personnel), trained to use relevant 
project-specific PAM software and equipment, and must also be able test 
software and hardware functionality prior to beginning real-time 
monitoring. 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. A Lead PAM operator must meet all of 
these requirements and have a minimum of 90 days in the specified role 
or sufficient alternative experience;
    (12) PSOs may work as PAM operators and vice versa, pending NMFS-
approval; however, they may only perform one role at any time and must 
not exceed work time restrictions, which must be tallied cumulatively; 
and
    (13) All PSOs and PAM operators must complete a Permits and 
Environmental Compliance Plan training and a 2-day refresher session 
that must be held with the PSO provider and Project compliance 
representative(s) prior to the start of in-water project activities 
(e.g., HRG survey, foundation installation, etc.).
    (b) General PSO and PAM operator requirements. The following 
measures apply to PSOs and PAM operators and must be implemented by LOA 
Holder:
    (1) PSOs must monitor for marine mammals prior to, during, and 
following impact pile driving and HRG surveys that use sub-bottom 
profilers (with specific monitoring durations and needs described in 
paragraphs (c) through (f) of this section, respectively). Monitoring 
must be done while free from distractions and in a consistent, 
systematic, and diligent manner;
    (2) PAM operator(s) must acoustically monitor for marine mammals 
prior to, during, and following all pile driving activities. PAM 
operators may be located on a vessel or remotely on-shore but must have 
the appropriate equipment (i.e., computer station equipped with a data 
collection software system available wherever they are stationed) and 
be in real-time communication with PSOs and transiting vessel captains. 
The PAM operator must monitor to and past the clearance zone for large 
whales;
    (3) For foundation installation, PSOs must visually clear (i.e., 
confirm no observations of marine mammals) the entire minimum 
visibility zone for a full 30 minutes immediately prior to commencing 
activities. For HRG surveys, which do not have a minimum visibility 
zone, the entire clearance zone must be visually cleared and as much of 
the Level B harassment zone as possible;
    (4) All PSOs must be located at the best vantage point(s) on any 
platform, as determined by the Lead PSO, in order to obtain 360-degree 
visual coverage of the entire clearance and shutdown zones around the 
activity area, and as much of the Level B harassment zone as possible. 
The PAM operator(s) must assist PSOs in ensuring full coverage of the 
clearance and shutdown zones;
    (5) All on-duty PSOs must remain in real-time contact with the on-
duty PAM operator(s), PAM operators must immediately communicate all 
acoustic

[[Page 84725]]

detections of marine mammals to PSOs, including any determination 
regarding species identification, distance, and bearing (where 
relevant) relative to the pile being driven and the degree of 
confidence (e.g., possible, probable detection) in the determination. 
All on-duty PSOs and PAM operator(s) must remain in contact with the 
on-duty construction personnel responsible for implementing mitigations 
(e.g., delay to pile driving) to ensure communication on marine mammal 
observations can easily, quickly, and consistently occur between all 
on-duty PSOs, PAM operator(s), and on-water project personnel;
    (6) 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);
    (7) Any visual observations of marine mammals by any project 
personnel must be communicated immediately to on-duty PSOs and vessel 
captains associated with other project vessels to increase situational 
awareness;
    (8) PSOs must use high magnification (25x) binoculars, standard 
handheld (7x) binoculars, and the naked eye to search continuously for 
marine mammals. During foundation installation, at least two PSOs on 
the pile driving vessel must be equipped with functional Big Eye 
binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; 
height control); these must be pedestal mounted on the deck at the best 
vantage point that provides for optimal sea surface observation and PSO 
safety. A minimum of three on-duty PSOs must be active on a dedicated 
PSO vessel. PAM operators must have the appropriate equipment (i.e., a 
computer station equipped with a data collection software system 
available wherever they are stationed) in accordance with the NMFS-
approved PAM Plan as described in Sec.  217.344(c)(20);
    (9) PSOs and PAM operators must not exceed 4 consecutive watch 
hours on duty at any time, must have a 2-hour (minimum) break between 
watches, and must not exceed a combined watch schedule of more than 12 
hours in a 24-hour period. If the schedule includes PSOs and PAM 
operators on-duty for 2-hour shifts, a minimum 1-hour break between 
watches must be allowed;
    (10) During periods of low visibility (e.g., darkness, rain, fog, 
poor weather conditions, etc.), PSOs must use alternative technology 
(e.g., infrared or thermal cameras) to monitor the clearance and 
shutdown zones as approved by NMFS; and
    (11) PSOs must remain in real-time contact with the PAM operators 
and construction personnel responsible for implementing mitigation 
(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
    (c) PSO and PAM operator requirements during WTG, OSS, and Met 
Tower foundation installation. The following measures apply to PSOs and 
PAM operators during WTG, OSS, and Met tower foundation installation 
and must be implemented by LOA Holder:
    (1) PSOs and PAM operator(s), using a NMFS-approved PAM system, 
must monitor for marine mammals 60 minutes prior to, during, and 30 
minutes following all pile driving activities. If PSOs cannot visually 
monitor the minimum visibility zone prior to impact pile driving at all 
times using the equipment described in paragraphs (b)(6) and (7) of 
this section, pile driving operations must not commence or must 
shutdown if they are currently active;
    (2) At least three on-duty PSOs must be stationed and observing 
from the activity platform during impact pile driving and at least 
three on-duty PSOs must be stationed on each dedicated PSO vessel. 
There must be a minimum of three PSO observation platforms during 
impact pile driving. Concurrently, at least one PAM operator per 
acoustic data stream (equivalent to the number of acoustic buoys) must 
be actively monitoring for marine mammals 60 minutes before, during, 
and 30 minutes after impact pile driving in accordance with a NMFS-
approved PAM Plan; and
    (3) LOA Holder must conduct PAM for at least 24 hours immediately 
prior to pile driving activities. The PAM operator must review all 
detections from the previous 24-hour period immediately prior to pile 
driving activities.
    (d) PSO requirements during HRG surveys. The following measures 
apply to PSOs during HRG surveys using acoustic sources that have the 
potential to result in harassment and must be implemented by LOA 
Holder:
    (1) At least one PSO must be on active duty monitoring during HRG 
surveys conducted during daylight (i.e., from 30 minutes prior to civil 
sunrise through 30 minutes following civil sunset) and two PSOs during 
nighttime surveying (if it occurs);
    (2) PSOs on HRG vessels must begin monitoring 30 minutes prior to 
activating acoustic sources, during the use of these acoustic sources, 
and for 30 minutes after use of these acoustic sources has ceased;
    (3) Any observations of marine mammals must be communicated to PSOs 
on all nearby survey vessels during concurrent HRG surveys; and
    (4) During daylight hours when survey equipment is not operating, 
LOA Holder must ensure that visual PSOs conduct, as rotation schedules 
allow, observations for comparison of sighting rates and behavior with 
and without use of the specified acoustic sources.
    (e) Monitoring requirements during fisheries monitoring surveys. 
The following measures apply during fisheries monitoring surveys and 
must be implemented by LOA Holder:
    (1) All captains and crew conducting fishery surveys must be 
trained in marine mammal detection and identification; and
    (2) Marine mammal monitoring must be conducted within 1 nmi from 
the planned survey location by the trained captain and/or a member of 
the scientific crew for 15 minutes prior to deploying gear, throughout 
gear deployment and use, and for 15 minutes after haul back.
    (f) Reporting. LOA Holder must comply with the following reporting 
measures:
    (1) Prior to initiation of any on-water project activities, LOA 
Holder must demonstrate in a report submitted to NMFS Office of 
Protected Resources that all required training for LOA Holder personnel 
(including the vessel crews, vessel captains, PSOs, and PAM operators) 
has been completed;
    (2) LOA Holder must use a standardized reporting system during the 
effective period of the LOA. All data collected related to the Project 
must be recorded using industry-standard software that is installed on 
field laptops and/or tablets. Unless stated otherwise, all reports must 
be submitted to NMFS Office of Protected Resources 
([email protected]), dates must be in MM/DD/YYYY 
format, and location information must be provided in Decimal Degrees 
and with the coordinate system information (e.g., NAD83, WGS84, etc.);
    (3) For all visual monitoring efforts and marine mammal sightings, 
the following information must be collected and reported to NMFS Office 
of Protected Resources: the date and time that monitored activity 
begins or ends; the construction activities occurring

[[Page 84726]]

during each observation period; the watch status (i.e., sighting made 
by PSO on/off effort, opportunistic, crew, alternate vessel/platform); 
the PSO who sighted the animal; the time of sighting; the weather 
parameters (e.g., wind speed, percent cloud cover, visibility); the 
water conditions (e.g., Beaufort sea state, tide state, water depth); 
all marine mammal sightings, regardless of distance from the 
construction activity; species (or lowest possible taxonomic level 
possible); the pace of the animal(s); the estimated number of animals 
(minimum/maximum/high/low/best); the estimated number of animals by 
cohort (e.g., adults, yearlings, juveniles, calves, group composition, 
etc.); the description (i.e., as many distinguishing features as 
possible of each individual seen, including length, shape, color, 
pattern, scars or markings, shape and size of dorsal fin, shape of 
head, and blow characteristics); the description of any marine mammal 
behavioral observations (e.g., observed behaviors such as feeding or 
traveling) and observed changes in behavior, including an assessment of 
behavioral responses thought to have resulted from the specific 
activity; the animal's closest distance and bearing from the pile being 
driven or specified HRG equipment and estimated time entered or spent 
within the Level A harassment and/or Level B harassment zone(s); the 
activity at time of sighting (e.g., impact pile driving, construction 
survey), use of any noise attenuation device(s), and specific phase of 
activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, 
soft-start for pile driving, active pile driving, etc.); the marine 
mammal occurrence in Level A harassment or Level B harassment zones; 
the description of any mitigation-related action implemented, or 
mitigation-related actions called for but not implemented, in response 
to the sighting (e.g., delay, shutdown, etc.) and time and location of 
the action; other human activity in the area, and; other applicable 
information, as required in any LOAs issued under Sec.  217.346;
    (4) LOA Holder must compile and submit weekly reports during 
foundation installation to NMFS Office of Protected Resources that 
document the type of pile, pile diameter, daily start and stop of all 
pile driving associated with the Project; the start and stop of 
associated observation periods by PSOs; hammer log (number of strikes, 
max hammer energy, duration of piling), any changes to noise 
attenuation systems and/or hammer schedule, details on the deployment 
of PSOs; a record of all detections of marine mammals (acoustic and 
visual); any mitigation actions (or if mitigation actions could not be 
taken, provide reasons why); and details on the noise attenuation 
system(s) used and its performance. Weekly reports must also include 
abbreviated SFV results. The weekly reports must also confirm that the 
required SFV was carried out for each pile and that results were 
reviewed on the required timelines. Weekly reports are due on Wednesday 
for the previous week (Sunday to Saturday) and must include the 
information required under this section. The weekly report must also 
identify which turbines become operational and when (a map must be 
provided). Once all foundation pile installation is completed, weekly 
reports are no longer required by LOA Holder;
    (5) LOA Holder must compile and submit monthly reports to NMFS 
Office of Protected Resources during foundation installation that 
include a summary of all information in the weekly reports, including 
project activities carried out in the previous month, vessel transits 
(number, type of vessel, MMIS number, and route), number of piles 
installed, all detections of marine mammals, and any mitigative action 
taken. Monthly reports are due on the 15th of the month for the 
previous month. The monthly report must also identify which turbines 
become operational and when (a map must be provided);
    (6) Full PAM detection data, metadata, and location of recorders 
(or GPS tracks, if applicable) must be submitted within 90 calendar 
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.
    (7) LOA Holder must submit a draft annual report to NMFS Office of 
Protected Resources no later than one year following date of LOA 
issuance within each given calendar year. LOA Holder must provide a 
final report within 30 days following resolution of NMFS' comments on 
the draft report. The draft and final reports must detail the 
following: the total number of marine mammals of each species/stock 
detected and how many were within the designated Level A harassment and 
Level B harassment zone(s) with comparison to authorized take of marine 
mammals for the associated activity type; marine mammal detections and 
behavioral observations before, during, and after each activity; what 
mitigation measures were implemented (i.e., number of shutdowns or 
clearance zone delays, etc.) or, if no mitigative actions was taken, 
why not; operational details (i.e., days and duration of impact and 
vibratory pile driving, days, and amount of HRG survey effort, etc.); 
any PAM systems used; the results, effectiveness, and which noise 
attenuation systems were used during relevant activities (i.e., impact 
pile driving); summarized information related to situational reporting; 
and any other important information relevant to the Project, including 
additional information that may be identified through the adaptive 
management process;
    (8) LOA Holder must submit its draft 5-year report to NMFS Office 
of Protected Resources on all visual and acoustic monitoring conducted 
within 90 calendar days of the completion of activities occurring under 
the LOA. At a minimum, the draft and final 5-year report must include: 
the total number (annually and across all 5 years) of marine mammals of 
each species/stock detected and how many were detected within the 
designated Level A harassment and Level B harassment zone(s) with 
comparison to authorized take of marine mammals for the associated 
activity type; a summary table(s) indicating the amount of each 
activity type (e.g., pile installation, HRG) completed in each of the 5 
years and total; GIS shapefile(s) of the final location of all piles, 
cable routes, and other permanent structures including an indication of 
what year installed and began operating; GIS shapefile of all North 
Atlantic right whale sightings, including dates and group sizes; a 5-
year summary and evaluation of all SFV data collected; a 5-year summary 
and evaluation of all PAM data collected; a 5-year summary and 
evaluation of marine mammal behavioral observations; a 5-year summary 
and evaluation of mitigation and monitoring implementation and 
effectiveness; a list of recommendations to inform environmental 
compliance assessments for future offshore wind actions. A 5-year 
report must be prepared and submitted within 60 calendar days following 
receipt of any NMFS Office of Protected Resources comments on the draft 
report. If no comments are

[[Page 84727]]

received from NMFS Office of Protected Resources within 60 calendar 
days of NMFS Office of Protected Resources receipt of the draft report, 
the report shall be considered final;
    (9) For those foundation piles requiring SFV measurements, LOA 
Holder must provide the initial results of the SFV measurements to NMFS 
Office of Protected Resources in an interim report after each 
foundation installation event as soon as they are available and prior 
to a subsequent foundation installation, but no later than 48 hours 
after the installation of each pile for which thorough SFV is carried 
out. The report must include, at minimum: a summary of pile 
installation activities (pile diameter, pile weight, pile length, water 
depth, sediment type, total installation time [start time, end time], 
duration of pile driving), hammer energies/schedule used during pile 
driving, including, the total number of strikes and the maximum hammer 
energy; the model-estimated acoustic ranges (R95) to 
compare with the real-world sound field measurements; peak sound 
pressure level (SPLpk), root-mean-square sound pressure 
level that contains 90 percent of the acoustic energy 
(SPLrms), and sound exposure level (SEL, in single strike 
for pile driving, SELss,), for each hydrophone, including at 
least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 
percent exceedance) statistics for each metric; estimated marine mammal 
Level A harassment and Level B harassment isopleths, calculated using 
the maximum-over-depth L5 (95 percent exceedance level, maximum of both 
hydrophones) of the associated sound metric; comparison of modeled 
results assuming 10-dB attenuation against the measured marine mammal 
Level A harassment and Level B harassment acoustic isopleths; estimated 
transmission loss coefficients; pile identifier name, location of the 
pile and each hydrophone array location in latitude/longitude; depths 
of each hydrophone; one-third-octave band single strike SEL spectra; if 
filtering is applied, full filter characteristics must be reported; and 
hydrophone specifications including the type, model, and sensitivity. 
LOA Holder must also report any immediate observations which are 
suspected to have a significant impact on the results including but not 
limited to: observed noise mitigation system issues, obstructions along 
the measurement transect, and technical issues with hydrophones or 
recording devices. If any in-situ calibration checks for hydrophones 
reveal a calibration drift greater than 0.75 dB, pistonphone 
calibration checks are inconclusive, or calibration checks are 
otherwise not effectively performed, LOA Holder must indicate full 
details of the calibration procedure, results, and any associated 
issues in the 48-hour interim reports;. All abbreviated SFV reports 
must include the results from the hydrophones at 750m and a comparison 
to the expected levels at 750 m based on the previously completed 
thorough SFV for comparable pile type and installation method.;
    (10) The final results of SFV measurements from each foundation 
installation must be submitted as soon as possible, but no later than 
90 days following completion of each event's SFV measurements. The 
final reports must include all details prescribed above for the interim 
report as well as, at minimum, the following: the peak sound pressure 
level (SPLpk), the root-mean-square sound pressure level 
that contains 90 percent of the acoustic energy (SPLrms), 
the single strike sound exposure level (SELss), the 
integration time for SPLrms, the spectrum, and the 24-hour 
cumulative SEL extrapolated from measurements at all hydrophones. The 
final report must also include at least the maximum, mean, minimum, 
median (L50) and L5 (95 percent exceedance) 
statistics for each metric; the SEL and SPL power spectral density and/
or one-third octave band levels (usually calculated as decidecade band 
levels) at the receiver locations should be reported; the sound levels 
reported must be in median, arithmetic mean, and L5 (95 
percent exceedance) (i.e., average in linear space), and in dB; range 
of 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, 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;
    (11) If at any time during the Project LOA Holder becomes aware of 
any issue or issues which may (to any reasonable subject-matter expert, 
including the persons performing the measurements and analysis) call 
into question the validity of any measured Level A harassment or Level 
B harassment isopleths to a significant degree, which were previously 
transmitted or communicated to NMFS Office of Protected Resources, LOA 
Holder must inform NMFS Office of Protected Resources within 1 business 
day of becoming aware of this issue or before the next pile is driven, 
whichever comes first;
    (12) Performance reports for each bubble curtain deployed must 
include water depth, current speed and direction, wind speed and 
direction, bubble curtain deployment/retrieval date and time, bubble 
curtain hose length, bubble curtain radius (distance from pile), 
diameter of holes and hole spacing, air supply hose length, compressor 
type (including rated cubic feet per minute (CFM) and model number), 
number of operational compressors, performance data from each 
compressor (including revolutions per minute (RPM), pressure, start 
times, and stop times), free air delivery (m\3\/min), total hose air 
volume (m\3\/(min m)), schematic of GPS waypoints during hose laying, 
maintenance procedures performed (pressure tests, inspections, 
flushing, re-drilling, and any other hose or system maintenance) before 
and after installation and the time and date of each of these 
procedures, and the length of time the bubble curtain was on the 
seafloor prior to foundation installation. Additionally, the report 
must include any important observations regarding performance (before, 
during, and after pile installation), such as any observed weak areas 
of low pressure. The report may also include any relevant video

[[Page 84728]]

and/or photographs of the bubble curtain(s) operating during pile 
driving;
    (13) If a North Atlantic right whale is acoustically detected at 
any time by a project-related PAM system, LOA Holder must ensure the 
detection is reported as soon as possible to NMFS, but no longer than 
24 hours after the detection via the ``24-hour North Atlantic right 
whale Detection Template'' (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the 
hotline is not necessary when reporting PAM detections via the 
template;
    (14) Full detection data, metadata, and location of recorders (or 
GPS tracks, if applicable) from all real-time hydrophones used for 
monitoring during construction must be submitted within 90 calendar 
days after pile driving has ended and instruments have been pulled from 
the water. Reporting must use the webform templates on the NMFS Passive 
Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. Submit 
the completed data templates to [email protected]. The full 
acoustic recordings from all real-time hydrophones must also be sent to 
the National Centers for Environmental Information for archiving within 
90 calendar days following completion of activities requiring PAM for 
mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
    (15) LOA Holder must submit situational reports if the following 
circumstances occur (including all instances wherein an exemption is 
taken must be reported to NMFS Office of Protected Resources within 24 
hours):
    (i) If a North Atlantic right whale is observed at any time by PSOs 
or project personnel, LOA Holder must ensure the sighting is 
immediately (if not feasible, as soon as possible, and no longer than 
24 hours after the sighting) reported to NMFS and the Right Whale 
Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to 
Virginia/North Carolina border) call (866-755-6622). If in the 
Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or 
877-942-5343). If calling NMFS is not possible, reports can also be 
made to the U.S. Coast Guard via channel 16 or through the WhaleAlert 
app (https://www.whalealert.org). The sighting report must include the 
time, date, and location of the sighting, number of whales, animal 
description/certainty of sighting (provide photos/video if taken), 
Lease Area/project name, PSO/personnel name, PSO provider company (if 
applicable), and reporter's contact information;
    (ii) If a North Atlantic right whale is observed at any time by 
PSOs or project personnel, LOA Holder must submit a summary report to 
GARFO ([email protected]) and NMFS Office of Protected 
Resources, and NMFS Northeast Fisheries Science Center (NEFSC; 
[email protected]) within 24 hours with the above information and 
the vessel/platform from which the sighting was made, activity the 
vessel/platform was engaged in at time of sighting, project 
construction and/or survey activity at the time of the sighting (e.g., 
pile driving, cable installation, HRG survey), distance from vessel/
platform to sighting at time of detection, and any mitigation actions 
taken in response to the sighting;
    (iii) If an observation of a large whale occurs during vessel 
transit, LOA Holder must report the time, date, and location of the 
sighting; the vessel's activity, heading, and speed (knots); Beaufort 
sea state, water depth (meters), and visibility conditions; marine 
mammal species identification to the best of the observer's ability and 
any distinguishing characteristics; initial distance and bearing to 
marine mammal from vessel and closest point of approach; and any 
avoidance measures taken in response to the marine mammal sighting;
    (iv) In the event that personnel involved in the Project discover a 
stranded, entangled, injured, or dead marine mammal, LOA Holder must 
immediately report the observation to NMFS. If in the Greater Atlantic 
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding 
Hotline (866-755-6622); if in the Southeast Region (North Carolina to 
Florida), call the NMFS Southeast Stranding Hotline (877-942-5343). 
Separately, LOA Holder must report the incident to NMFS Office of 
Protected Resources ([email protected]) and, if in the 
Greater Atlantic region (Maine to Virginia), GARFO 
([email protected], [email protected]) or, if 
in the Southeast region (North Carolina to Florida), NMFS Southeast 
Regional Fisheries Office (SERO; [email protected]) as soon as 
feasible. The report (via phone or email) must include contact (name, 
phone number, etc.), the time, date, and location of the first 
discovery (and updated location information if known and applicable); 
species identification (if known) or description of the animal(s) 
involved; condition of the animal(s) (including carcass condition if 
the animal is dead); observed behaviors of the animal(s), if alive; if 
available, photographs or video footage of the animal(s); and general 
circumstances under which the animal was discovered;
    (v) In the event of a vessel strike of a marine mammal by any 
vessel associated with the Project or if other project activities cause 
a non-auditory injury or death of a marine mammal, LOA Holder must 
immediately report the incident to NMFS. If in the Greater Atlantic 
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding 
Hotline (866-755-6622) and if in the Southeast Region (North Carolina 
to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). 
Separately, LOA Holder must immediately report the incident to NMFS 
Office of Protected Resources ([email protected]) and, 
if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO 
([email protected], [email protected]) or, if 
in the Southeast region (North Carolina to Florida), NMFS SERO 
([email protected]). The report must include the time, date, 
and location of the incident; species identification (if known) or 
description of the animal(s) involved; vessel size and motor 
configuration (inboard, outboard, jet propulsion); vessel's speed 
leading up to and during the incident; vessel's course/heading and what 
operations were being conducted (if applicable); status of all sound 
sources in use; description of avoidance measures/requirements that 
were in place at the time of the strike and what additional measures 
were taken, if any, to avoid strike; environmental conditions (e.g., 
wind speed and direction, Beaufort sea state, cloud cover, visibility) 
immediately preceding the strike; estimated size and length of animal 
that was struck; description of the behavior of the marine mammal 
immediately preceding and following the strike; if available, 
description of the presence and behavior of any other marine mammals 
immediately preceding the strike; estimated fate of the animal (e.g., 
dead, injured but alive, injured and moving, blood or tissue observed 
in the water, status unknown, disappeared); and to the extent 
practicable, photographs or video footage of the animal(s). LOA Holder 
must immediately cease all on-water activities until the NMFS Office of 
Protected Resources is able to review the circumstances of the incident 
and determine what, if any, additional measures are appropriate to 
ensure compliance with the terms of the LOA.

[[Page 84729]]

NMFS Office of Protected Resources may impose additional measures to 
minimize the likelihood of further prohibited take and ensure MMPA 
compliance. LOA Holder may not resume their activities until notified 
by NMFS Office of Protected Resources; and
    (16) LOA Holder must report any lost gear associated with the 
fishery surveys to the NOAA GARFO Protected Resources Division 
([email protected]) as soon as possible or within 24 
hours of the documented time of missing or lost gear. This report must 
include information on any markings on the gear and any efforts 
undertaken or planned to recover the gear.


Sec.  217.346   Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
LOA Holder must apply for and obtain an LOA;
    (b) The LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed December 31, 2029, the expiration date of 
this subpart;
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by the LOA, LOA Holder must 
apply for and obtain a modification of the LOA as described in Sec.  
217.347;
    (d) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (e) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under the regulations of this subpart; and
    (f) Notice of issuance or denial of the LOA must be published in 
the Federal Register within 30 days of a determination.


Sec.  217.347   Modifications of Letter of Authorization.

    (a) The LOA issued under Sec. Sec.  217.342 and 217.346 or this 
section for the activity identified in Sec.  217.340 shall be modified 
upon request by LOA Holder, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for this subpart (excluding changes made 
pursuant to the adaptive management provision in paragraph (c)(1) of 
this section); and
    (2) NMFS Office of Protected Resources determines that the 
mitigation, monitoring, and reporting measures required by the previous 
LOA under this subpart were implemented.
    (b) For a LOA modification request by the applicant that includes 
changes to the activity or the mitigation, monitoring, or reporting 
(excluding changes made pursuant to the adaptive management provision 
in paragraph (c)(1) of this section), the LOA shall be modified, 
provided that:
    (1) NMFS Office of Protected Resources determines that the changes 
to the activity or the mitigation, monitoring, or reporting do not 
change the findings made for the regulations in this subpart and do not 
result in more than a minor change in the total estimated number of 
takes (or distribution by species or years); and
    (2) NMFS Office of Protected Resources may, if appropriate, publish 
a notice of proposed LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) The LOA issued under Sec. Sec.  217.342 and 217.346 or this 
section for the activities identified in Sec.  217.340 may be modified 
by NMFS Office of Protected Resources under the following 
circumstances:
    (1) Through adaptive management, NMFS Office of Protected Resources 
may modify (including delete, modify, or add to) the existing 
mitigation, monitoring, or reporting measures (after consulting with 
the LOA Holder regarding the practicability of the modifications), if 
doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of the mitigation and monitoring;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in the LOA 
include, but are not limited to:
    (A) Results from LOA Holder's monitoring;
    (B) Results from other marine mammals and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by the regulations in 
this subpart or subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
Office of Protected Resources shall publish a notice of proposed LOA in 
the Federal Register and solicit public comment.
    (2) If NMFS Office of Protected Resources determines that an 
emergency exists that poses a significant risk to the well-being of the 
species or stocks of marine mammals specified in the LOA issued 
pursuant to Sec. Sec.  217.342 and 217.346 or this section, the LOA may 
be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within 30 days of the 
action.


Sec. Sec.  217.348-217.349   [Reserved]

[FR Doc. 2024-22601 Filed 10-22-24; 8:45 am]
BILLING CODE 3510-22-P