[Federal Register Volume 88, Number 28 (Friday, February 10, 2023)]
[Proposed Rules]
[Pages 8996-9103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02497]



[[Page 8995]]

Vol. 88

Friday,

No. 28

February 10, 2023

Part II





Department of Commerce





-----------------------------------------------------------------------





National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Part 217





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

  Federal Register / Vol. 88, No. 28 / Friday, February 10, 2023 / 
Proposed Rules  

[[Page 8996]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 230201-0034]
RIN 0648-BL67


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

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

ACTION: Proposed rule; proposed letter of authorization; request for 
comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received a request from Sunrise Wind, LLC (Sunrise 
Wind), a 50/50 joint venture between [Oslash]rsted North America, Inc. 
([Oslash]rsted) and Eversource Investment, LLC, for Incidental Take 
Regulations (ITR) and an associated Letter of Authorization (LOA) 
pursuant to the Marine Mammal Protection Act (MMPA). The requested 
regulations would govern the authorization of take, by Level A 
harassment and/or Level B harassment, of small numbers of marine 
mammals over the course of 5 years (2023-2028) incidental to 
construction of the Sunrise Wind Offshore Wind Farm Project offshore of 
New York in a designated lease area on the Outer Continental Shelf 
(OCS-A-0487). Project activities likely to result in incidental take 
include pile driving (impact and vibratory), potential unexploded 
ordnance or munitions and explosives of concern (UXO/MEC) detonation, 
and vessel-based site assessment surveys using high-resolution 
geophysical (HRG) equipment. NMFS requests comments on this proposed 
rule. NMFS will consider public comments prior to making any final 
decision on the promulgation of the requested ITR and issuance of the 
LOA; agency responses to public comments will be summarized in the 
final rule, if issued. The proposed regulations, if adopted, would be 
effective November 20, 2023-November 19, 2028.

DATES: Comments and information must be received no later than March 
13, 2023.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to www.regulations.gov and enter NOAA-NMFS-2023-
0012 in the Search box. Click on the ``Comment'' icon, complete the 
required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of Sunrise Wind's application and supporting documents, 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 proposed rule, if adopted, would provide a framework under the 
authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the 
authorization of take of marine mammals incidental to construction of 
the Sunrise Wind Offshore Wind Farm Project within the Bureau of Ocean 
Energy Management (BOEM) Renewable Energy Lease Area OCS-A 0487 and 
along an export cable corridor to a landfall location in New York. NMFS 
received a request from Sunrise Wind for 5-year regulations and an LOA 
that would authorize take of individuals of 16 species of marine 
mammals by harassment only (four species by Level A harassment and 
Level B harassment and 12 species by Level B harassment) incidental to 
Sunrise Wind's construction activities. No mortality or serious injury 
is anticipated or proposed for authorization. Please see the Estimated 
Take of Marine Mammals section below for definitions of harassment.

Legal Authority for the Proposed 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, 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. The definitions of all applicable MMPA 
statutory terms cited above are included below.
    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 5-year regulations and an associated LOA. 
This proposed rule also establishes required mitigation, monitoring, 
and reporting requirements for Sunrise Wind's activities.

Summary of Major Provisions Within the Proposed Rule

    The major provisions within this proposed rule are as follows:
     Establishing a seasonal moratorium on impact pile driving 
during the months of highest North Atlantic right whale (Eubalaena 
glacialis) presence in the project area (January 1-April 30);
     Establishing a seasonal moratorium on any UXO/MEC 
detonations during the months of highest North Atlantic right whale 
present in the project area (December 1-April 30).
     Requiring that any UXO/MEC detonations may occur only 
during hours of daylight and not during hours of darkness or night.
     Conducting both visual and passive acoustic monitoring by 
trained, NOAA

[[Page 8997]]

Fisheries-approved Protected Species Observers (PSOs) and Passive 
Acoustic Monitoring (PAM) operators before, during, and after the in-
water construction activities;
     Requiring the use of sound attenuation device(s) during 
all impact pile driving and UXO/MEC detonations to reduce noise levels;
     Delaying the start of pile driving if a North Atlantic 
right whale is observed at any distance by the PSO on the pile driving 
or dedicated PSO vessels;
     Delaying the start of pile driving if other marine mammals 
are observed entering or within their respective clearance zones;
     Shutting down pile driving (if feasible) if a North 
Atlantic right whale is observed or if other marine mammals enter their 
respective shut down zones;
     Implementing soft-starts for impact pile driving and using 
the least hammer energy possible;
     A requirement to implement noise abatement system(s) 
during all impact pile driving and UXO/MEC detonations;
     Implementing ramp-up for HRG site characterization survey 
equipment;
     Requiring PSOs to continue to monitor for 30 minutes after 
any impact pile driving occurs and for any and after all UXO/MEC 
detonations;
     Increasing awareness of North Atlantic right whale 
presence through monitoring of the appropriate networks and Channel 16 
as well as reporting any sightings to the sighting network;
     Implementing vessel strike avoidance measures;
     Sound field verification requirements during impact pile 
driving and UXO/MEC detonation to measure in situ noise levels for 
comparison against the model results; and
     Implementing best management practices during fisheries 
monitoring surveys such as removing gear from the water if marine 
mammals are considered at-risk or are interacting with gear.
    Under Section 105(a)(1) of the MMPA, failure to comply with these 
requirements or any other requirements in a regulation or permit 
implementing the MMPA may result in civil monetary penalties. Pursuant 
to 50 CFR 216.106, violations may also result in suspension or 
withdrawal of the Letter of Authorization (LOA) for the project. 
Knowing violations may result in criminal penalties under Section 
105(b) of the MMPA.

National Environmental Policy Act (NEPA)

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate the proposed action (i.e., promulgation of 
regulations and subsequent issuance of a 5-year LOA) and alternatives 
with respect to potential impacts on the human environment.
    Accordingly, NMFS proposes to adopt BOEM's Environmental Impact 
Statement (EIS), provided our independent evaluation of the document 
finds that it includes adequate information analyzing the effects of 
promulgating the proposed regulations and LOA issuance on the human 
environment. NMFS is a cooperating agency on BOEM's EIS. BOEM's draft 
EIS (Sunrise Wind Draft Environmental Impact Statement (DEIS) for 
Commercial Wind Lease OCS-A 0487) was made available for public comment 
on December 16, 2022 (87 FR 77136), beginning the 60-day comment period 
ending on February 14, 2023. Additionally, BOEM held three virtual 
public hearings on January 18, January 19, and January 23, 2023.
    Information contained within Sunrise Wind's incidental take 
authorization (ITA) application and this proposed rule provide the 
environmental information related to these proposed regulations and 
associated 5-year LOA for public review and comment. NMFS will review 
all comments submitted in response to this proposed rule prior to 
concluding the NEPA process or making a final decision on the requested 
5-year ITR and LOA.

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

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

Summary of Request

    On November 10, 2021, Sunrise Wind submitted a request for the 
promulgation of regulations and issuance of an associated 5-year LOA to 
take marine mammals incidental to construction activities associated 
with implementation of the Sunrise Wind Offshore Wind Farm Project 
(herein ``SWF'') offshore of New York in the BOEM Lease Area OCS-A-
0487. Sunrise Wind's request is for the incidental, but not 
intentional, taking of a small number of 16 marine mammal species 
(comprising 16 stocks) by Level B harassment (for all 16 species or 
stocks) and by Level A harassment (for 4 species or stocks). Neither 
Sunrise Wind nor NMFS expects serious injury or mortality to result 
from the specified activities nor is any proposed for authorization.
    In response to our questions and comments and following extensive 
information exchange between Sunrise Wind and NMFS, Sunrise Wind 
submitted a final revised application on May 9, 2022, which NMFS deemed 
adequate and complete on May 10, 2022. This final application is 
available on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
    On June 2, 2022, NMFS published a notice of receipt (NOR) of 
Sunrise Wind's adequate and complete application in the Federal 
Register (87 FR 33470), requesting comments and soliciting information 
related to Sunrise Wind's request during a 30-day public comment 
period. During the NOR public comment period, NMFS received comment 
letters from two environmental non-governmental organizations: Clean 
Ocean Action and Oceana. NMFS has reviewed all submitted material and 
has taken the material into consideration during the drafting of this 
proposed rule. Subsequently, in June 2022, new scientific information 
was released regarding marine mammal densities (Robert and Halpin, 
2022) and, as such, Sunrise Wind submitted a final Updated Density and 
Take Estimation Memo to NMFS on December 15, 2022 that included updated 
marine mammal densities and take estimates. This memo is available on 
our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind).
    NMFS previously issued four Incidental Harassment Authorizations 
(IHAs) to [Oslash]rsted for the taking of marine mammals incidental to 
marine site characterization surveys (using HRG equipment) of the 
Sunrise Wind's BOEM Lease Area (OCS-A 0487) and

[[Page 8998]]

surrounding BOEM Lease Areas (OCS-A 0486, OCS-A 0500) (see 84 FR 52464, 
October 2, 2019; 85 FR 63508, October 8 14, 2020; 87 FR 756, January 6, 
2022; and 87 FR 61575, October 12, 2022). To date, [Oslash]rsted has 
complied with all IHA requirements (e.g., mitigation, monitoring, and 
reporting). Information regarding [Oslash]rsted's monitoring results 
may be found in the Estimated Take of Marine Mammals section, and the 
full monitoring reports can be found on NMFS' website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered North 
Atlantic right whales from vessel collisions, which are a leading cause 
of the species' decline and a primary factor in an ongoing Unusual 
Mortality Event (87 FR 46921). Should a final vessel speed rule be 
issued and become effective during the effective period of this ITR (or 
any other MMPA incidental take authorization), 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 of the 
effective date, NMFS would also notify Sunrise Wind if the measures in 
the speed rule were to supersede any of the measures in the MMPA 
authorization such that they were no longer required.

Description of the Specified Activity

Overview

    Sunrise Wind has proposed to construct and operate a 924 to 1,034 
megawatt (MW) wind energy facility (known as Sunrise Wind Farm (SRWF)) 
in state and Federal waters in the Atlantic Ocean in lease area OCS-A-
0487, located within the Massachusetts and Rhode Island Wind Energy 
Area (RI/MA WEA). Sunrise Wind's project would consist of several 
different types of permanent offshore infrastructure, including wind 
turbine generators (WTGs) and associated foundations, an offshore 
converter substation (OCS-DC), offshore substation array cables, and 
substation interconnector cables. Specifically, activities to construct 
the project include the installation of up to 94 WTGs (at 102 potential 
locations) and 1 OCS-DC via impact pile driving; impact and vibratory 
pile driving at the cable landfall site; trenching, laying, and burial 
activities associated with the installation of the export cable route 
from the OCS-DC to the shore-based converter station and inter-array 
cables between turbines; site preparation work (e.g., boulder removal); 
placement of scour protection around foundations; HRG vessel-based site 
characterization surveys using active acoustic sources with frequencies 
of less than 180 kHz; detonating up to three UXO/MEC of different 
charge weights; and several types of fishery and ecological monitoring 
surveys. Vessels would transit within the project area and between 
ports and the wind farm to transport crew, supplies, and materials to 
support pile installation. All offshore cables will connect to onshore 
export cables, substations, and grid connections, which would be 
located on Long Island. Marine mammals exposed to elevated noise levels 
during impact and vibratory pile driving, detonations of UXOs, or site 
characterization surveys may be taken by Level A harassment and/or 
Level B harassment depending on the specified activity.

Dates and Duration

    Sunrise Wind anticipates that activities with the potential to 
result in harassment of marine mammals would occur throughout all 5 
years of the proposed regulations which, if promulgated, would be 
effective from November 20, 2023 through November 19, 2028.
    The estimated schedule, including dates and duration, for various 
activities is provided in Table 1 (also see Table 4 and Figure 6 in 
Sunrise Wind's application); however, this proposed rule considers the 
potential for activity schedules to shift. Detailed information about 
the activities themselves may be found in the Detailed Description of 
Specific Activity subsection.

             Table 1--Estimated Activity Schedule To Construct and Operate the Sunrise Wind Project
----------------------------------------------------------------------------------------------------------------
              Project area                       Project activity               Expected timing and duration
----------------------------------------------------------------------------------------------------------------
Sunrise Wind Farm (SRWF) Construction..  WTG Foundation Installation.....  Q3-Q4 2024; 4-5 months.
                                         OCS-DC Foundation Installation..  Q4 2024; 2-3 days (48-72 hours).
                                         WTG Installation................  Q4 2024-Q2 2025; 9 months.
                                         Seafloor preparation............  Q1-Q2 2024
                                         Array Cable Installation........  Q2-Q3 2025; 7 months.
                                         UXO/MEC detonation..............  Q2 2024; 3 days.
Sunrise Wind Export Corridor (SRWEC)     Cable Landfall Installation       Q4 2023-Q1 2024; 16 days.
 Construction.                            (casing pipe and sheetpile
                                          installation and removal, HDD).
                                         Offshore Export Cable
                                          Installation.
                                         Route clearance.................  Q2 2024
                                         EC Installation.................  Q4 2024 to Q1 2025; 8 months.
                                         HRG Survey......................  Q4 2023-Q4 2025; Any time of year.
Operations.............................  HRG Survey......................  Q4 2024-Q3 2028; Any time of year.
----------------------------------------------------------------------------------------------------------------
 Italicized activities do not have the potential to result in take of marine mammals.


[[Page 8999]]

WTG and OCS-DC Foundation Installation
    The installation of 94 WTG and 1 OCS-DC foundations would be 
limited to May through December, given the seasonal restriction on 
foundation impact pile driving from January 1-April 30. As described 
previously, Sunrise Wind intends to install all foundations in a single 
year over the course of 4 to 5 months. However, it is possible that 
monopile installation would continue into a second year depending on 
construction logistics and local and environmental conditions that may 
influence Sunrise Wind's ability to maintain the planned construction 
schedule.
    Installation of a single monopile foundation is expected to require 
a maximum of 4 hours of active impact hammering, which can occur either 
in a continuous 4-hour interval or intermittently over a longer time 
period. Installation of a single piled jacket foundation is estimated 
to require approximately 48 hours of pile driving per jacket (which 
includes up to 6 hours of pile driving per pile). It is assumed that 
the pile driving would occur within a 72-hour window (~ 3 days) 
including wait time in between pile installation. Pile driving activity 
will include a 20-minute soft-start at the beginning of each pile 
installation.
    Sunrise Wind has provided five scenarios for how many piles may be 
installed on a given day. Piles may be installed consecutively (one at 
a time) or concurrently (multiple piles at the same time). Potential 
daily pile driving scenarios include:
     Consecutive installation of two WTG monopiles or four OCS-
DC pin piles consecutively in 1 day for 53 days;
     Consecutive installation of three WTG monopiles or four 
OCS-DC pin piles consecutively in 1 day for 36 days;
     Concurrent installation of four WTG monopiles in 1 day, 
two each by two different installation vessels operating concurrently 
in close proximity to each other (``Proximal'', i.e. 3 nautical miles 
apart) for 25.5 days, plus 4 OCS-DC pin piles per day for 2 days;
     Concurrent installation of four WTG monopiles in 1 day, 
two each by two different installation vessels operating concurrently 
at long distances from each other (``Distal'', i.e. opposite ends of 
the SRWF) for 25.5 days plus four OCS-DC pin piles per day for 2 days; 
or
     Concurrent installation of two WTG monopiles by one vessel 
and four OCS-DC pin piles by a second vessel for 2 days followed by two 
WTG monopiles per day by a single vessel for 49 days.
    Sunrise Wind anticipates that the first WTGs would become 
operational in Q3 2025 after installation is completed and all 
necessary components, such as array cables, OCS-DC, export cable 
routes, and onshore substations are installed. Turbines would be 
commissioned individually by personnel on location, so the number of 
commissioning teams would dictate how quickly turbines would become 
operational. Sunrise Wind expects that all turbines will be 
commissioned by Q4 2025.
UXO/MEC Detonations
    Based on preliminary survey data, Sunrise Wind estimates a maximum 
of 3 days of UXO/MEC detonation may occur with up to one UXO/MEC being 
detonated per day. Any UXO/MEC detonation would occur during daylight 
hours only after proper marine mammal monitoring is conducted (see 
Proposed Monitoring and Reporting section). Sunrise Wind anticipates 
UXO/MEC detonation would be limited to Q2 2024. Sunrise Wind would not 
detonate UXOs/MECs between December and April.
Cable Landfall Construction
    Cable landfall construction is one of the first activities 
scheduled to occur, sometime between Q4 2023-Q1 2024. In their 
application, Sunrise Wind indicated they would install and remove up to 
two casing pipes and supporting goal posts over 36 days; however, the 
project has been refined such that only one casing pipe and goal posts 
would be installed and removed over 16 days. Installation of the single 
casing pipe may take up to 3 hours of pneumatic hammering on each of 2 
days for installation. Removal of the casing pipe is anticipated to 
require approximately the same amount of pneumatic hammering and 
overall time, or less, meaning the pneumatic pipe ramming tool may be 
used for up to 3 hours per day over 4 days. Up to 22 sheet piles may be 
installed to support the work. Sheet pile may require up to 2 hours of 
vibratory piling and up to 4 sheet piles may be installed per day 
(total of 8 hours of vibratory pile driving per day). Removal of the 
goal posts may also involve the use of a vibratory hammer and likely 
require approximately the same amount of time as installation (6 days 
total). Thus, use of a vibratory pile driver to install and remove 
sheet piles may occur on up to 12 days at the landfall location.
HRG Surveys
    High-resolution geophysical site characterization surveys would 
occur annually throughout the 5 years the rule and LOA would be 
effective with duration dependent on the activities occurring in that 
year (i.e., construction versus non-construction year). HRG surveys 
would utilize up to a maximum of four vessels working concurrently in 
different sections of the Lease Area and SRWEC corridor. During the 
first year of construction (when the majority of foundations and cables 
are installed), Sunrise Wind estimates that a total of 12,275 km may be 
surveyed over 175 vessel days within the Lease Area and along the SRWEC 
corridor in water depths ranging from 2 m (6.5 ft) to 55 m (180 ft). 
During non-construction years (Yrs 3-5), Sunrise Wind estimates 6,311.2 
km would be surveyed over 90.2 vessel days per year. Each day that a 
survey vessel covers 70 km (44 miles) of survey trackline is considered 
vessel day. For example, Sunrise Wind would consider two vessels 
operating concurrently, with each surveying 70 km (44 miles), two 
vessel days. Sunrise Wind anticipates that each vessel would survey an 
average of 70 km (44 miles) per day, assuming a 4 km/hour (2.16 knots) 
vessel speed and 24-hour operations. In some cases, vessels may conduct 
daylight-only 12-hour nearshore surveys covering half that distance (35 
km or 22 miles). Over the course of 5 years, HRG surveys would be 
conducted at any time of year for a total of 48,484 km over 622 vessel 
days. In this schedule, Sunrise Wind accounted for periods of down-time 
due to inclement weather or technical malfunctions.

Specific Geographic Region

    Sunrise Wind would construct the SRWF in Federal waters offshore of 
New York (Figure 1). The lease area OCS-A 0487 is part of the Rhode 
Island/Massachusetts Wind Energy Area (RI-MA WEA). The Lease Area 
covers approximately 86,823 acres (351 km\2\) and is located 
approximately 18.9 statute miles (mi) (16.4 nautical miles (nmi), 30.4 
kilometers (km)) south of Martha's Vineyard, Massachusetts; 
approximately 30.5 mi (26.5 nmi, 48.1 km) east of Montauk, New York; 
and 16.7 mi (14.5 nmi, 26.8 km) from Block Island, Rhode Island Water 
depths in the Lease Area range from 35 to 62 m (115-203 ft), averaging 
49 m (160.8 ft), while water depths along the SRWEC corridor range from 
5.7 to 67 m (18.7 to 219.8 ft). The cable landfall construction area 
would be approximately 5.7 m (18.7 ft) in depth. Cables would come 
ashore at the Smith Point County Park.
    Sunrise Wind's specified activities would occur in the Northeast 
U.S. Continental Shelf Large Marine Ecosystem (NES LME), an area of 
approximately 260,000 km\2\ from Cape Hatteras in the south to the Gulf 
of

[[Page 9000]]

Maine in the north. Specifically, the lease area and cable corridor are 
located within the Mid-Atlantic Bight subarea of the NES LME, which 
extends between Cape Hatteras, North Carolina, and Martha's Vineyard, 
Massachusetts, extending westward into the Atlantic to the 100-m 
isobath. In the Mid-Atlantic Bight, which extends from Massachusetts to 
North Carolina,the pattern of sediment distribution is relatively 
simple. The continental shelf south of New England is broad and flat, 
dominated by fine grained sediments. Most of the surficial sediments on 
the continental shelf are sands and gravels. Silts and clays 
predominate at and beyond the shelf edge, with most of the slope being 
70-100 percent mud. Fine sediments are also common in the shelf valleys 
leading to the submarine canyons, as well as in areas such as the ``Mud 
Patch'' south of Rhode Island. There are some larger materials, 
including boulders and rocks, left on the seabed by retreating 
glaciers, along the coast of Long Island and to the north and east.
    In support of the Rhode Island Ocean Special Area Management Plan 
development process, Codiga and Ullman (2011) reviewed and summarized 
the physical oceanography of coastal waters off Rhode Island. 
Conditions off the coast of Rhode Island are shaped by a complex 
interplay among wind-driven variability, tidal processes, and density 
gradients that arise from combined effects of interaction with adjacent 
estuaries, solar heating, and heat flux through the air-sea interface. 
In winter and fall, the stratification is minimal and circulation is a 
weak upwelling pattern directed offshore at shallow depths and onshore 
near the seafloor. In spring and summer strong stratification develops 
due to an important temperature contribution, and a system of more 
distinct currents occurs, including a narrow flow that proceeds 
counterclockwise around the perimeter of RIS likely in association with 
a tidal mixing front.
    The waters in the vicinity of the SRWF and SRWEC are transitional 
waters positioned between the continental slope and the coastal 
environments of Long Island Sound and Narragansett Bay. The region is 
generally characterized by predominantly mobile sandy substrate, and 
the associated benthic communities are adopted to survive in a dynamic 
environment. The WEAs are composed of a mix of soft and hard bottom 
environments as defined by the dominant sediment grain size and 
composition (Continental Margin Mapping Program [Department of the 
Interior 2020]; usSEABED [USGS 2020]. The benthic environment of the 
RI-MA WEA is dominated by sandy sediments that ranged from very fine to 
medium sand; very fine sands tend to be more prevalent in deeper, lower 
energy areas (i.e., the southern portion of the MA WEA), whereas 
coarser sediments, including gravels (e.g., patchy cobbles and 
boulders) were found in shallower areas (Bay State Wind 2019, Deepwater 
Wind South Fork, LLC 2019; DWW Rev I, LLC 2020; Stokesbury 2014; 
LaFrance et al. 2010; McMaster 1960; Popper et al. 2014). The species 
that inhabit the benthic habitats of the OCS are typically described as 
infaunal species, those living in the sediments (e.g., polychaetes, 
amphipods, mollusks), and epifaunal species, those living on the 
seafloor surface (mobile, e.g., sea starts, sand dollars, sand shrimp) 
or attached to substrates (sessile, e.g., barnacles, anemones, 
tunicates). Further detail on the benthic habitats found at the SRWF 
and along the SRWEC, including the results of site-specific benthic 
habitat assessments, can be found within COP section 4.4.2, COP 
Appendices M1--Benthic Resources Characterization Report--Federal 
Waters, M2--Benthic Resources Characterization Report--New York State 
Waters, and M3--Benthic Habitat Mapping Report.

[[Page 9001]]

[GRAPHIC] [TIFF OMITTED] TP10FE23.000

Detailed Description of Specific Activity

    Below, we provide detailed descriptions of Sunrise Wind's 
activities, explicitly noting those that are anticipated to result in 
the take of marine mammals and for which incidental take authorization 
is requested. Additionally, a brief explanation is provided for those 
activities that are not expected to result in the take of marine 
mammals.
Installation of WTG Foundations
    Sunrise Wind plans to install up to 94 WTG monopile foundations 
with a maximum diameter tapering from 7 m above the waterline to 12 m 
(39 ft) below the waterline (7/12 m monopile (see Figure 3 in Sunrise 
Wind's application)) in lease area OCS-0487 spaced in a 1 nmi x 1 nmi 
grid pattern. The Project will generate between 924 to 1,034 MW of 
renewable energy. Although up to 94 WTGs are expected to be installed, 
Sunrise Wind has accounted for up to 8 potential locations where WTG 
installation is begun but unable to be completed due to environmental 
or engineering constraints (i.e.,only 94 WTGs will be installed but 
within 102 potential locations).
    Figure 3 in Sunrise Wind's application provides a conceptual 
example of the WTG support structures (i.e., towers and foundations), 
which will be designed to withstand 500-year hurricane wind and wave 
conditions, and the external platform level will be designed above the 
1,000-year wave scenario. A WTG monopile foundation typically consists 
of a single steel tubular section with several sections of rolled steel 
plate welded together. Secondary structures on each WTG monopile 
foundation will include a boat landing or alternative means of safe 
access (e.g., Get Up Safe--a motion compensated hoist system allowing 
vessel to foundation personnel transfers without a boat landing), 
ladders, a crane, and other ancillary components.
    A typical monopile installation sequence begins with the monopiles 
transported directly to the Sunrise Wind Farm for installation or to 
the construction staging port by an installation vessel or a feeding 
barge. At the foundation location, the main installation vessel upends 
the monopile in a vertical position in the pile gripper mounted on the 
side of the vessel. The hammer is then lifted on top of the pile and 
pile driving commences with a soft-start and proceeds to completion. 
Piles are driven until the target embedment depth is met (up to 50 m), 
then the pile hammer is removed and the monopile is released from the 
pile gripper. Once installation of the monopile is complete, the vessel 
moves to the next installation location.
    Monopiles would be installed using a 4,000 kJ impact pile driver 
(although, in general, only up to 3,200 kJ will be necessary except for 
potentially 1 strike at 4,000 kJ) to a maximum penetration depth of 50 
m (164 ft). Installation of each monopile will include a 20-minute 
soft-start where lower hammer energy is used at the beginning of each 
pile installation. Under normal conditions, after completion of the 20-
minute soft-start period, installation of a single monopile foundation 
is estimated to require 1-4 hours of active pile driving; however, 
breaks may be necessary such that 1-4 hours of pile driving occurs over 
several more hours (up to 12 hours). Sunrise Wind anticipates it would 
then take approximately 4 hours to move to the next piling location. 
Once at the new location, a 1-hour monitoring period would occur such 
that there would be no less than 5 hours between each pile 
installation. In total,

[[Page 9002]]

376 hours (94 WTGs x 4 hours each) would be the maximum amount of time 
impact monopile driving would occur over the course of 1 year. Sunrise 
Wind is proposing to install foundations consecutively or concurrently 
(see Dates and Duration section). Impact pile driving associated with 
WTG foundation installation would be limited to the months of May 
through December and is currently scheduled to be conducted during Q3 
and Q4 2024. Installation of WTG foundations is anticipated to result 
in the take of marine mammals due to noise generated during pile 
driving.
    Sunrise Wind has proposed to conduct pile driving 24-hours per day. 
Once construction begins, Sunrise Wind would proceed as rapidly as 
possible, while meeting all required mitigation and monitoring 
measures, to reduce the total duration of construction. Orsted, the 
parent company of Sunrise Wind, is currently analyzing data from pilot 
projects investigating the efficacy of technology to monitor (visually 
and acoustically) marine mammals during nighttime and reduced 
visibility conditions. NMFS acknowledges the benefits of completing 
construction quickly during times when North Atlantic right whales are 
unlikely to be in the area but also recognizes challenges associated 
with monitoring during reduced visibility conditions such as night. 
Should Sunrise Wind submit a NMFS-approved Alternative Monitoring Plan, 
pile driving may be initiated at night. NMFS intends to condition the 
final rule, if issued, identifying if initiating pile driving at night 
may occur.
Offshore Converter Station (OCS-DC)
    Sunrise Wind would install a single OCS-DC for the project on a 
jacket foundation (see Figure 4 in Sunrise Wind's application). A piled 
jacket foundation is formed of a steel lattice construction (comprising 
tubular steel members and welded joints) secured to the seabed by means 
of hollow steel pin piles attached to the jacket. The piled jacket 
foundation will have four legs with two pin piles per leg (eight piles 
total). The platform height will be up to 26.8 m (88 ft) with a leg 
diameter of up to 4.6 m (15 ft) and a pile diameter of up to 4 m (13 
ft). Installation of OCS-DC jacket foundation pin piles (two per leg, 
eight total) will be performed using an impact pile driver with a 
maximum hammer energy of 4,000-kJ to a maximum penetration depth of 90 
m (295 ft). It is assumed that installation of the jacket foundation 
would require 48 hours of pile driving total (6 hours per pile), which 
would occur over 3 days. The current schedule estimates the OCS-DC 
jacket foundation would be installed in Q4 2024. Installation of the 
OCS-DC jacket foundation is anticipated to result in the take of marine 
mammals due to noise generated during pile driving.
    The OCS-DC requires the withdrawal of raw seawater through a 
cooling water intake structure (CWIS) to dissipate heat produced 
through the AC to DC conversion and then discharge this water as 
thermal effluent to the marine receiving waters. It includes intake 
pipes and sweater lift pumps (SWLP), course filters, 
electrochlorination system, heat exchange system, and a dump caisson. 
The OCS-DC would discharge non-contact cooling water (NCCW) and non-
contact stormwater to the marine receiving waters. The design intake 
flow (DIF) for the OCS-DC is 8.1 million gallons per day (MGD); 
however, the Average Flow Intake (AFI) will generally range from 4.0 
MGD to 5.3 MGD. The rate at which seawater would be taken (e.g. maximum 
through-screen velocity [TSV]) is 0.1525 m/s [0.5 ft/s]). The dump 
caisson consists of a single outlet vertical pipe oriented downward in 
the water column. The dump caisson is the primary discharge point for 
the OCS-DC. Pollutants discharged at the dump caisson will include NCCW 
and residual chlorine. The temperature of the water exiting the heat 
exchange system will depend on the ambient air temperature, ambient 
water temperature, power output, and other factors. Sunrise Wind 
indicated the maximum temperature under all operating scenarios and 
conditions will not exceed 32 [deg]C (90 [deg]F) and the thermal plume 
is not expected to extend beyond 30 m of the dump caisson. No take of 
marine mammals would occur due to water withdrawal or thermal 
discharge.
Cable Landfall Construction
    Installation of the SRWF export cable landfall will be accomplished 
using a horizontal directional drilling (HDD) methodology. HDD will be 
used to connect the SRWEC offshore cable to the Onshore Transmission 
Cable at the landfall location and to cross the Intercoastal Waterway 
(ICW) from Fire Island to mainland Long Island. The drilling equipment 
will be located onshore and used to create a borehole, one for each 
cable, from shore to an exit point on the seafloor approximately 0.5 mi 
(800 m) offshore. At the seaward exit site for each borehole, 
construction activities may include the temporary installation of a 
casing pipe, supported by sheet pile goal posts, to collect drilling 
mud from the borehole exit point. Additionally, 10 sheet piles may be 
used to support the casing pipe and help to anchor/stabilize the vessel 
which will be collecting drilling fluid. Installation of up to two 
casing pipes (one at each HDD exit pit location) would be completed 
using pneumatic pipe ramming equipment while installation of sheet pile 
for goal posts would be completed using a vibratory pile driving 
hammer. These activities would not occur simultaneously as some of the 
same equipment on the barge is necessary to conduct both types of 
installations. All installation activities would occur during daylight 
periods.
    Sunrise Wind would install a single casing pipe at an 11-12-degree 
angle with the seabed so that the casing pipe creates a straight 
alignment between the point of penetration at the seabed and the 
construction barge. Casing pipe installation will occur from the 
construction barge and be accomplished using a pneumatic pipe ramming 
tool (e.g., Grundoram Taurus or similar) with a hammer energy of up to 
18 kJ. If necessary, additional sections of casing pipe may be welded 
together on the barge to extend the length of the casing pipe from the 
barge to the penetration depth in the seabed.
    Installation of the single casing pipe may take up to 3 hours of 
pneumatic hammering on each of the 2 days for installation. 
Installation time will be dependent on the number of pauses required to 
weld additional sections onto the casing pipe. Removal of the casing 
pipe is anticipated to require approximately the same amount of 
pneumatic hammering and overall time, or less, meaning the pneumatic 
pipe ramming tool may be used for up to 3 hours per day on up to 4 
days.
    Up to six goal posts may be installed to support the casing pipe 
between the barge and the penetration point on the seabed. Each goal 
post would be composed of two vertical sheet piles installed using a 
vibratory hammer such as an American Pile Equipment (APE) model 300 (or 
similar). A horizontal cross beam connecting the two sheet piles would 
then be installed to provide support to the casing pipe. Up to 10 
additional sheet piles may be installed to help anchor the barge and 
support the construction activities. This results in a total of up to 
22 sheet piles. Installation of the goal posts would require up to 6 
days. Sheet pile may require up to 2 hours of vibratory piling and up 
to four sheet piles may be installed per day (total of 8 hours of 
vibratory pile driving per day). Removal of the goal posts may also 
involve the use of a vibratory hammer and likely require approximately 
the same amount of time

[[Page 9003]]

as installation (6 days total). Thus, use of a vibratory pile driver to 
install and remove sheet piles may occur on up to 12 days at the 
landfall locations. Installation and removal of the casing pipe and 
goal posts is anticipated to result in the take of marine mammals due 
to noise generated during pile driving.
UXO/MEC Detonations
    Sunrise Wind anticipates the potential for construction activities 
to encounter UXO/MECs on the seabed within the SRWF and along the SRWEC 
corridor. UXO/MECs include explosive munitions such as bombs, shells, 
mines, torpedoes, etc., that did not explode when they were originally 
deployed or were intentionally discarded in offshore munitions dump 
sites to avoid land-based detonations. The risk of incidental 
detonation associated with conducting seabed-altering activities, such 
as cable laying and foundation installation in proximity to UXO/MECs, 
jeopardizes the health and safety of project participants (Sunrise Wind 
2022). Sunrise Wind follows an industry standard As Low as Reasonably 
Practicable (ALARP) process that minimizes the number of potential 
detonations (COP Appendix G2, (Sunrise-Wind 2021).
    For UXO/MECs that are positively identified in proximity to planned 
activities on the seabed, several alternative strategies will be 
considered prior to in-situ UXO/MEC disposal. These may include (1) 
relocating the activity away from the UXO/MEC (avoidance), (2) moving 
the UXO/MEC away from the activity (lift and shift), (3) cutting the 
UXO/MEC open to apportion large ammunition or deactivate fused 
munitions, using shaped charges to reduce the net explosive yield of a 
UXO/MEC (low-order detonation), or (4) using shaped charges to ignite 
the explosive materials and allow them to burn at a slow rate rather 
than detonate instantaneously (deflagration). Only after these 
alternatives are considered would in-situ high-order UXO/MEC detonation 
be pursued. To detonate a UXO/MEC, a small charge would be placed on 
the UXO/MEC and ignited, causing the UXO/MEC to then detonate, which 
could result in the take of marine mammals.
    To better assess the likelihood of encountering UXO/MECs during 
project construction, Sunrise Wind has and will continue to conduct HRG 
surveys to identify potential UXO/MECs that have not been previously 
mapped. As these surveys and analysis of data from them are still 
underway, the exact number and type of UXO/MECs in the project area are 
not yet known. However, Sunrise Wind assumes that up to three UXO/MEC 
454-kg (1000 pounds; lbs) charges, which is the largest charge that is 
reasonably expected to be encountered, may require in situ detonation. 
Although it is highly unlikely that all three charges would weigh 454 
kg, this approach was determined to be the most conservative for the 
purposes of impact analysis. If necessary, these detonations would 
occur on up to 3 different days (i.e., only one detonation would occur 
per day). In the event that high-order removal (detonation) is 
determined to be the preferred and safest method of disposal, all 
detonations would occur during daylight hours. Sunrise Wind would avoid 
detonating UXO/MECs from December 1 through April 30 to provide 
protection for North Atlantic right whales during the timeframe they 
are expected to occur more frequently in the project area. UXO/MEC 
detonation is anticipated to result in the take of marine mammals due 
to noise.
HRG Surveys
    HRG surveys would be conducted to identify any seabed debris and to 
support micrositing of the WTG and OCS-DC foundations and cable routes. 
These surveys may utilize active acoustic equipment such as multibeam 
echosounders, side scan sonars, shallow penetration sub-bottom 
profilers (SBPs) (e.g., Compressed High-Intensity Radiated Pulses 
(CHIRPs) non-parametric SBP), medium penetration sub-bottom profilers 
(e.g., sparkers and boomers), ultra-short baseline positioning 
equipment, and marine magnetometers, some of which are expected to 
result in the take of marine mammals. Equipment may be mounted to the 
survey vessel or Sunrise Wind may use autonomous surface vehicles (SFV) 
to carry out this work. Surveys would occur annually, with durations 
dependent on the activities occurring in that year (i.e., construction 
years versus operational years).
    As summarized previously, HRG surveys will be conducted using up to 
four vessels. On average, 70-line km will be surveyed per vessel each 
survey day at approximately 7.4 km/hour (4 knots) on a 24-hour basis 
although some vessels may only operate during daylight hours (~12-hour 
survey vessels). During the construction phase (Yr1 and Yr2), an 
estimated 24,550 survey line km, plus in-fill and re-surveys, may be 
necessary to survey the inter-array cables and the Sunrise Wind Export 
Cable in water depths ranging from 2 m (6.5 ft) to 55 m (180 ft). HRG 
surveys are anticipated to operate at any time of year for a maximum of 
351 active sound source days over the 2 years of construction. During 
the operations phase (Yrs 3-5), an estimated 6,311 km per year for 3 
years (18,933 km total) may be surveyed in the Sunrise Wind Farm and 
along the Sunrise Wind Export Cable. Using the same estimate of 70 km 
of survey completed each day per vessel, approximately 90 days of 
survey would occur each year for a total of up to 270 active sound 
source days over the 3-year operations period. In total, across all 5 
years, a total of 43,484 kms of trackline may be surveyed.
    Of the HRG equipment types proposed for use, the following sources 
have the potential to result in take of marine mammals:
     Shallow penetration sub-bottom profilers (SBPs) to map the 
near-surface stratigraphy (top 0 to 5 m (0 to 16 ft) of sediment below 
seabed). A CHIRP system emits sonar pulses that increase in frequency 
over time. The pulse length frequency range can be adjusted to meet 
project variables. These are typically mounted on the hull of the 
vessel or from a side pole.
     Medium penetration SBPs (boomers) to map deeper subsurface 
stratigraphy as needed. A boomer is a broad-band sound source operating 
in the 3.5 Hz to 10 kHz frequency range. This system is typically 
mounted on a sled and towed behind the vessel.
     Medium penetration SBPs (sparkers) to map deeper 
subsurface stratigraphy as needed. A sparker creates acoustic pulses 
from 50 Hz to 4 kHz omni-directionally from the source that can 
penetrate several hundred meters into the seafloor. These are typically 
towed behind the vessel with adjacent hydrophone arrays to receive the 
return signals.
    Table 2 identifies all the representative survey equipment that 
operate below 180 kilohertz (kHz) (i.e., at frequencies that are 
audible and have the potential to disturb marine mammals) that may be 
used in support of planned geophysical survey activities and are likely 
to be detected by marine mammals given the source level, frequency, and 
beamwidth of the equipment. Equipment with operating frequencies above 
180 kHz and equipment that does not have an acoustic output (e.g., 
magnetometers) will also be used but are not discussed further because 
they are outside the general hearing range of marine mammals likely to 
occur in the project area or do not produce noise. Hence, no harassment 
is reasonably expected to occur from the operation of these sources.

[[Page 9004]]



                                                 Table 2--Summary of Representative HRG Survey Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Source
                                                           Operating    level      Source       Pulse     Repetition   Beamwidth
         Equipment type            Representative model    frequency    SPLrms   level 0-pk   duration    rate (Hz)    (degrees)           Source
                                                             (kHz)       (dB)       (dB)        (ms)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sub-bottom profiler.............  EdgeTech 216..........         2-16      195            -          20            6           24  MAN
                                  EdgeTech 424..........         4-24      176            -         3.4            2           71  CF
                                  Edgetech 512..........       0.7-12      179            -           9            8           80  CF
                                  GeoPulse 5430A........         2-17      196            -          50           10           55  MAN
                                  Teledyn Benthos CHIRP          2-17      197            -          60           15          100  MAN
                                   III--TTV 170.
Sparker.........................  Applied Acoustics Dura-     0.3-1.2      203          211         1.1            4         Omni  CF
                                   Spark UHD (400 tips,
                                   500 J).
Boomer..........................  Applied Acoustics             0.1-5      205          211         0.6            4           80  CF
                                   triple plate S-Boom
                                   (700-1,000 J).
--------------------------------------------------------------------------------------------------------------------------------------------------------
- = not applicable; ET = EdgeTech; J = joule; kHz = kilohertz; dB = decibels; SL = source level; UHD = ultra-high definition; AA = Applied Acoustics;
  rms = root-mean square; [micro]Pa = microPascals; re = referenced to; SPL = sound pressure level; PK = zero-to-peak pressure level; Omni =
  omnidirectional source.
\a\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  These include variants of the Dura-spark sparker system and various configurations of the GeoMarine Geo-Source sparker system. The data provided in
  Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when
  manufacturer or other reliable measurements are not available.
\b\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
  used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
  in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.

Cable Laying and Installation
    Cable burial operations would occur both in SRWF for the inter-
array cables connecting the 94 WTGs to single OCS-DC and in the SRWEC 
corridor for cables carrying power from the OCS-DC to shore. The 
offshore export and inter-array cables would be buried in the seabed at 
a target depth of up to 1.2 to 2.8 m (4 to 6 ft) and buried onshore up 
to the transition joint bays. All cable burial operations would follow 
installation of the monopile foundations as the foundations must be in 
place to provide connection points for the export cable and inter-array 
cables. Cable laying, cable installation, and cable burial activities 
planned to occur during the construction of the Sunrise Wind project 
may include the following: jetting; vertical injection; leveling; 
mechanical cutting; plowing (with or without jet-assistance); pre-
trenching; boulder removal; and controlled flow excavation.
    Some dredging may be required prior to cable laying due to the 
presence of sandwaves. Sandwave clearance may be undertaken where cable 
exposure is predicted over the lifetime of the Project due to seabed 
mobility. This facilitates cable burial below the reference seabed. 
Alternatively, sandwave clearance may be undertaken where slopes become 
greater than approximately 10 degrees (17.6 percent), which could cause 
instability to the burial tool. The work could be undertaken by 
traditional dredging methods such as a trailing suction hopper. 
Alternatively, controlled flow excavation or a sandwave removal plough 
could be used. In some cases, multiple passes may be required. The 
method of sandwave clearance Sunrise Wind chooses would be based on the 
results from the site investigation surveys and cable design.
    As the noise levels generated from cable laying and installation 
work are low, the potential for take of marine mammals to result is 
discountable. Sunrise Wind is not requesting, and NMFS is not proposing 
to authorize, take associated with cable laying activities. Therefore, 
cable laying activities are not analyzed further in this document.
Temporary Pier Construction
    Construction of the cable landfall at Smith Point County Park 
parking lot will require equipment and materials to transit from Long 
Island to Fire Island. The Smith Point Bridge, the only vehicle access 
to the Smith Point County Park parking lot, has had its posted weight 
limitation of 15 tons gross weight due to structural condition issues 
and concerns over accelerated aging. Due to these weight limitations, 
Sunrise Wind will utilize a transport barge and temporary landing 
structure (pier) to transport the heavy construction equipment and 
materials necessary to construct the Sunrise Wind Farm Project across 
the Intracoastal Waterway (ICW) to Smith Point County Park. The 
materials moved using the barge and temporary equipment are required to 
construct the Project and includes equipment needed to complete the HDD 
work and onshore civil works that are otherwise too heavy to travel 
across the Smith Point Bridge. In addition to the temporary pier on 
Fire Island, temporary mooring and breasting dolphins will be installed 
near the boat ramp at the Smith Point Marina on the Long Island side of 
the ICW to facilitate safe loading and unloading of the barge at the 
Smith Point Marina boat launch on Long Island.
    The temporary pier will require the installation of up to 26 total 
production piles that will remain the entire time the temporary pier is 
in place. Temporary piles may be used to support a steel-framed 
template used to ensure installation of the bent production piles in 
the correct positions. The temporary piles may include up to 24 H-
shaped or cylinder piles of the same size as the production piles. 
Therefore, a total of 50 piles (up to 26 production piles and up to 24 
temporary piles) may be installed, and in some cases removed, during 
construction.
    Installation and removal of the up to 24 temporary piles would be 
completed using only vibratory pile driving equipment. The up to 26 
production piles would first be driven using a vibratory hammer 
followed by an impact hammer. Both production and temporary piles will 
be removed using vibratory pile driving. It is anticipated that 
installation of the pier will occur over approximately 3 to 4 weeks in 
and around December 2023. Installation of up to 26 production piles may 
result in a total of up to 351 minutes (5 hours 51 min) of vibratory 
pile driving (26 x 13.5 min) and 39 minutes of impact pile driving (26 
x 1.5 min). Installation and removal of up to 24 temporary piles may 
require up to 720 minutes (16 hours) of vibratory pile driving only (2 
x 24 x 15 min). The maximum total pile driving time for installation is 
therefore 1,071 min (17 hours 51 min) of vibratory pile driving and 39 
minutes of impact pile driving. Following completion of the landfall 
construction work on Fire Island, the temporary pier is expected to be 
removed in approximately April or May of 2025. Removal of the temporary 
pier would involve the removal of all 26 production piles using a 
vibratory hammer. Thus, the total duration of

[[Page 9005]]

vibratory pile driving during pier removal may be up to 390 min (6 
hours 30 min; 26 x 15 min).
    While pile driving would result in Level B harassment isopleths up 
to approximately 750 m from the piles (as described in Sunrise Wind's 
Temporary Pier Memo (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable), the very short duration of pile driving, 
the limited harassment area, the location of the harassment area (in an 
area where marine mammals are not typically present), and the 
implementation of monitoring and mitigation measures (see Proposed 
Mitigation and Proposed Monitoring and Reporting sections), Sunrise 
Wind is not requesting, and NMFS is not proposing to authorize, take of 
marine mammals incidental to temporary pier and breasting and mooring 
dolphin construction activities.
Vessel Operation
    Sunrise Wind will utilize various types of vessels over the course 
of the 5-year proposed regulations. Sunrise Wind is evaluating the 
potential use of several existing port facilities located in New York, 
Connecticut, Maryland, Massachusetts, New Jersey, Rhode Island, and 
Virginia to support offshore construction, assembly and fabrication, 
crew transfer and logistics. The primary construction ports that are 
expected to be used during construction include: Albany and/or 
Coeymans, New York; Port of New London, Connecticut; and Port of 
Dainsville-Quonset Point, Rhode Island.
    The largest vessels are expected to be used during the WTG 
installation phase with floating/jackup crane barges, cable-laying 
vessels, supply/crew vessels, and associated tugs and barges 
transporting construction equipment and materials. Large work vessels 
(e.g., jack-up installation vessels and cable-laying vessels) for 
foundation and WTG installation will generally transit to the work 
location and remain in the area until installation time is complete. 
These large vessels will move slowly over a short distance between work 
locations. Transport vessels will travel between several ports and the 
SRWF over the course of the construction period following mandatory 
vessel speed restrictions (see Proposed Mitigation section). These 
vessels will range in size from smaller crew transport boats to tug and 
barge vessels. However, construction crews responsible for assembling 
the WTGs will hotel onboard installation vessels at sea, thus limiting 
the number of crew vessel transits expected during the installation of 
the SRWF.
    As part of various vessel-based construction activities, including 
cable laying and construction material delivery, dynamic positioning 
thrusters may be utilized to hold vessels in position or move slowly. 
Sound produced through use of dynamic positioning thrusters is similar 
to that produced by transiting vessels, and dynamic positioning 
thrusters are typically operated either in a similarly predictable 
manner or used for short durations around stationary activities. Sound 
produced by dynamic positioning thrusters would be preceded by, and 
associated with, sound from ongoing vessel noise and would be similar 
in nature; thus, any marine mammals in the vicinity of the activity 
would be aware of the vessel's presence. Construction-related vessel 
activity, including the use of dynamic positioning thrusters, is not 
expected to result in take of marine mammals. Sunrise Wind did not 
request, and NMFS does not propose to authorize, any take associated 
with vessel activity.
    During operation, up to three crew transfer vessels and a service 
operation vessel will be used to conduct maintenance activities. 
Sunrise Wind has also included potential for helicopters to be used in 
lieu of crew transfer vessels. The use of helicopters is included in 
Table 3 below; however, it is important to note that Sunrise Wind has 
indicated that there are a number of uncertainties regarding the how 
many trips will be made using helicopters, the number of passengers to 
be carried, and the vessels to which those passengers would be 
transported. Therefore, the total number of vessel trips shown in Table 
3 has not been reduced based on the anticipated helicopter flights. As 
such, the number of crew transfer vessel trips may be less than 
depicted here.

     Table 3--Type and Number of Vessels and Number of Vessel Trips
             Anticipated During Construction and Operations
------------------------------------------------------------------------
                                           Max number of    Max annual
              Vessel types                 simultaneous      number of
                                              vessels      return trips
------------------------------------------------------------------------
             Wind Turbine Foundation Installation (Yrs 1-2)
------------------------------------------------------------------------
Heavy Lift Installation Vessel..........               2              20
Heavy Transport Vessel..................               4              50
Platform Supply Vessel..................               2              80
In-field support tug....................               2              50
Vessel for Bubble Curtain...............               1              30
Crew Transport Vessel...................               1              50
Monitoring Vessel.......................               4             102
Completion Vessel.......................               1              50
Fall Pipe Vessel........................               1               6
------------------------------------------------------------------------
                     Turbine Installation (Yrs 1-2)
------------------------------------------------------------------------
Installation Vessel.....................               1              26
Support Vessel..........................               1               9
------------------------------------------------------------------------
                   Array Cable Installation (Yrs 1-2)
------------------------------------------------------------------------
Pre-Lay Grapnel Run.....................               1               5
Boulder Clearance Vessel................               1               5
Sandwave Clearance Vessel...............               1               3
Cable Laying Vessel.....................               3               3

[[Page 9006]]

 
Cable Burial Vessel.....................               2               3
Walk to Work Vessel (SOV)...............               1               6
Crew Transport Vessel...................               1             260
Survey Vessel...........................               4               8
Construction Vessel.....................               2               4
Fall Pipe Vessel........................               2              10
------------------------------------------------------------------------
            Offshore Converter Station Installation (Yrs 1-2)
------------------------------------------------------------------------
Primary Installation Vessel.............               3               3
Transport Vessel........................               2               2
Support Vessels.........................              11               5
Fall Pipe Vessel........................               1               2
------------------------------------------------------------------------
              Offshore Export Cable Installation (Yrs 1-2)
------------------------------------------------------------------------
Pre-Lay Grapnel Run.....................               1               1
Boulder Clearance Vessel................               1               1
Sandwave Clearance Vessel...............               1               1
Cable Laying Vessel.....................               3               6
Cable Burial Vessel.....................               2               4
Tugs....................................               4               8
Crew Transport Vessel...................               1             260
Guard Vessel/Scout Vessel...............               5               9
Survey Vessel...........................               2               6
Fall Pipe Vessel........................               1               2
Construction Vessel.....................               2               2
------------------------------------------------------------------------
                  All Construction Activities (Yrs 1-2)
------------------------------------------------------------------------
Safety Vessel...........................               2             114
Crew Transport Vessel...................               3             300
Jack-up/Lift Boat.......................               1               1
Supply Vessel...........................               1              10
Service Operation Vessel................               1               6
Helicopter..............................               2             350
------------------------------------------------------------------------
                      Operations Vessels (Yrs 3-5)
------------------------------------------------------------------------
Crew Transport Vessel...................               3             300
Service Operation Vessel................               1              40
------------------------------------------------------------------------

    Helicopters may be used during Sunrise Wind Farm construction and 
operation phases for crew transfer activities to provide a reduction in 
the overall transfer time as well as to reduce the number of vessels on 
the water. Sunrise Wind estimates crew transfer time could be decreased 
by 92 percent (16 to 30 minutes via a helicopter versus 3.5 to 6 hours 
using a vessel). However, use of helicopters may be limited by many 
factors, such as logistical constraints (e.g., ability to land on the 
vessels) and weather conditions that affect flight operations. 
Helicopter use also adds significant health, safety and environment 
(HSE) risk to personnel and therefore, requires substantially more crew 
training and additional safety procedures. These factors can result in 
significant limitations to helicopter usage. The use of helicopters to 
conduct crew transfers is likely to provide an overall benefit to 
marine mammals in the form of reduced vessel activity.
    Project-related aircraft would only occur at low altitudes over 
water during takeoff and landing at an offshore location where one or 
more vessels are located. Helicopters produce sounds that can be 
audible to marine mammals; however, most sound energy from aircraft 
reflects off the air-water interface as only sound radiated downward 
within a 26-degree cone penetrates below the surface water (Urick 
1972). Due to the intermittent nature and the small area potentially 
ensonified by this sound source, Sunrise Wind did not request, and NMFS 
is not proposing to authorize, take of marine mammals incidental to 
helicopter flights; therefore, it will not be discussed further.
Seafloor Preparation
    For export cable installation, seafloor preparation will include 
required sand wave leveling, boulder clearance, and removal of any out 
of service cables. Boulder clearance trials may be performed prior to 
wide-scale seafloor preparation activities to evaluate efficacy of 
boulder clearing techniques. Additionally, pre-lay grapnel runs (PLGR) 
will be undertaken to remove any seafloor debris along the export cable 
route. A specialized vessel will tow a grapnel rig along the centerline 
of each cable to recover any debris to the deck for appropriate 
licensed disposal ashore. Rock berm or concrete mattress separation 
layers will also be installed at the eight known telecommunications 
cables crossed by the SRWEC and/or inter-array cable (IAC) routes prior 
to cable installation for both in-service

[[Page 9007]]

assets as well as out-of-service assets that cannot be safely removed 
and pose a risk to the SRWEC or IAC.
    For monopile and jacket pile installation, seafloor preparation 
will include required boulder clearance and removal of any obstructions 
within the seafloor preparation area at each foundation location. Scour 
protection installation will occur prior to installation and will 
involve a rock dumping vessel placing scour at each foundation 
location.
    Boulder clearance may be required in targeted locations to clear 
boulders along the SRWEC, inter-array cable (IAC) routes, and/or 
foundations prior to installation. Boulder removal can be performed 
using a combination of methods to optimize clearance of boulder debris 
of varying size and frequency. Removal is based on pre-surveys to 
identify location, size, and density of boulders. The size of boulders 
that can be relocated is dependent on a number of factors including the 
boulder weight, dimensions, embedment, density and ground conditions. 
Typically, boulders with dimensions less than 8 ft (2.5 m) can be 
relocated with standard tools and equipment. Where required, Sunrise 
Wind has assumed the route would be cleared of boulders up to 98 feet 
(30-m) in width along the final SRWEC and IAC centerlines. Around the 
foundations, Sunrise Wind assumes boulder clearance will occur within a 
722-ft (220-m) radius centered on the foundations to ensure safe 
foundation installation as well as safe vessel jack-up.
    Boulder removal would occur prior to installation and would be 
completed by a support vessel based on pre-construction surveys. A 
boulder grab or a boulder plow may be used to complete boulder removal 
prior to installation. A boulder grab involves a grab most likely 
deployed from a dynamic positioning offshore support vessel being 
lowered to the seabed over the targeted boulder. Once ``grabbed'', the 
boulder is relocated away from the cable route and/or foundation 
location. Boulder clearance using a boulder plow is completed by a 
high-bollard pull vessel with a towed plow generally forming an 
extended V-shaped configuration splaying from the rear of the main 
chassis. The V-shaped configuration displaces any boulders to the 
extremities of the plow, thus clearing the corridor. A tracked plow 
with a front blade similar to a bulldozer may also be used to push 
boulders away from the corridor.
    Sand leveling (inclusive of leveling of sand accumulation areas) 
may be required during seafloor preparation activities prior to 
installation of the SRWEC. Two installation methods may be used to 
complete sand leveling including Suction Hopper Dredging and controlled 
flow excavation (CFE). The dredging technique consists of one or more 
suction downpipes equipped with a seafloor drag head. The drag head is 
towed over the sand wave by the vessel while a pump system sucks 
fluidized sand into the vessel's storage hopper. Any sediment removed 
would be relocated within the local sand wave field along the SRWEC and 
IAC using continuous overflow from the vessel. Alternatively, the 
removed sediment can be caught in the hopper storage and the vessel can 
relocate to a designated storage or disposal area and either offload 
material through a hatch in the vessel's hull or more carefully 
position material subsea using a downpipe. CFE is a contactless 
dredging tool, providing a method of clearing loose sediment below 
submarine cables, enabling burial. CFE utilizes thrust to direct 
waterflow into sediment, creating liquefaction and subsequent 
dispersal. The CFE tool draws in seawater from the sides and then jets 
this water out from a vertical down pipe at a specified pressure and 
volume, which is then positioned over the cable alignment, enabling the 
stream of water to fluidize the sands around the cable. This allows the 
cable to settle into the trench under its own weight.
    NMFS does not expect site preparation work, including boulder 
removal and sand leveling, to generate noise levels that would cause 
take of marine mammals. Underwater noise associated with these 
activities is expected to be similar in nature to the sound produced by 
the dynamic positioning (DP) cable lay vessels used during cable 
installation activities within the SRWEC. Sound produced by DP vessels 
is considered non-impulsive and is typically more dominant than 
mechanical or hydraulic noises produced from the cable trenching or 
boulder removal vessels and equipment. Therefore, noise produced by the 
high bollard pull vessel with a towed plow or a support vessel carrying 
a boulder grab would be comparable to or less than the noise produced 
by DP vessels, so impacts are also expected to be similar. Boulder 
clearance is a discreet action occurring over a short duration 
resulting in short term direct effects. Additionally, sound produced by 
boulder clearance vessels and equipment would be preceded by, and 
associated with, sound from ongoing vessel noise and would be similar 
in nature.
    NMFS expects that marine mammals would not be exposed to sounds 
levels or durations from seafloor preparation work that would disrupt 
behavioral patterns. Therefore, the potential for take of marine 
mammals to result from these activities is discountable and Sunrise 
Wind did not request, and NMFS does not propose to authorize, any takes 
associated with seafloor preparation work and these activities are not 
analyzed further in this document.
Fisheries and Benthic Monitoring
    Fisheries and benthic monitoring surveys have been designed for the 
Project in accordance with recommendations set forth in ``Guidelines 
for Providing Information on Fisheries for Renewable Energy Development 
on the Atlantic Outer Continental Shelf'' (BOEM 2019). Sunrise Wind 
would conduct trawl surveys, acoustic telemetry studies, benthic 
habitat monitoring using a remotely operated vehicle (ROV), video 
surveillance, grab surveys, and Habcam surveys using towed video 
surveillance. Because the gear types and equipment used for the 
acoustic telemetry study, benthic habitat monitoring, and Habcam 
surveys do not have components with which marine mammals are likely to 
interact (i.e.,become entangled in or hooked by), these activities are 
unlikely to have any impacts on marine mammals. Therefore, only trawl 
surveys, in general, have the potential to result in harassment to 
marine mammals. However, Sunrise Wind would implement mitigation and 
monitoring measures to avoid taking marine mammals, including, but not 
limited to, monitoring for marine mammals before and during trawling 
activities, not deploying or pulling trawl gear in certain 
circumstances, limiting tow times, and fully repairing nets. A full 
description of mitigation measures can be found in the Proposed 
Mitigation section.
    With the implementation of these measures, Sunrise Wind does not 
anticipate, and NMFS is not proposing to authorize, take of marine 
mammals incidental to research trawl surveys. Any lost gear associated 
with the fishery surveys will be reported to the NOAA Greater Atlantic 
Regional Fisheries Office Protected Resources Division as soon as 
possible. Given no take is anticipated from these surveys, impacts from 
fishery surveys will not be discussed further in this document.

[[Page 9008]]

Description of Marine Mammals in the Area of Specified Activities

    Thirty-nine marine mammal species (comprising 40 stocks) have 
geographic ranges within the western North Atlantic OCS (Hayes et al., 
2022). However, for reasons described below, Sunrise Wind has 
requested, and NMFS proposes to authorize, take of only 16 species 
(comprising 16 stocks) of marine mammals. Sections 3 and 4 of Sunrise 
Wind's application summarize available information regarding status and 
trends, distribution and habitat preferences, and behavior and life 
history of the potentially affected species (Sunrise Wind, 2021). NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions in the application, incorporated here by reference, 
instead of reprinting the information. Additional information regarding 
population trends and threats may be found in NMFS's Stock Assessment 
Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general 
information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).
    Table 4 lists all species and stocks for which take is expected and 
proposed to be authorized for this action and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR) level, where known. The MMPA defines PBR as ``the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population'' (16 U.S.C. 1362(20)) 
PBR values are identified in NMFS's SARs. While no mortality is 
anticipated or proposed to be authorized, PBR and annual serious injury 
and mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some stocks, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
Table 4 are the most recent available at the time of publication and 
are available in NMFS' 2021 SARs (Hayes et al., 2022) available online 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.

                   Table 4--Marine Mammal Species Likely To Occur Near the Project Area That May Be Taken by Sunrise Wind's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        ESA/ MMPA  status;   Stock  abundance (CV,
             Common name                  Scientific name               Stock             strategic  (Y/N)     Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             368 (0; 364; 2019) \5\        0.7        7.7
Family Balaenopteridae (rorquals)
    Blue whale......................  Balaenoptera musculus..  Western North Atlantic.  E, D, Y             UNK (UNK; 402; 1980-          0.8          0
                                                                                                             2008).
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24; 5,573;            11        1.8
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.           Coastal.                                     2016).
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, Y             1,396 (0; 1,380; 2016)         22      12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Family Delphinidae
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71; 54,433;         544         27
                                                                                                             2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
    Common bottlenose dolphin.......  Tursiops truncatus.....  Western North Atlantic   -, -, N             62,851 (0.23; 51,914;         519         28
                                                                Offshore.                                    2016).
    Long-finned pilot whales........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3; 30,627;          306         29
                                                                                                             2016).
    Common dolphin (short-beaked)...  Delphinus delphis......  Western North Atlantic.  -, -, N             172,974 (0.21;              1,452        390
                                                                                                             145,216; 2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             35,215 (0.19; 30,051;         301         34
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena...............  Gulf of Maine/Bay of     -, -, N             95,543 (0.31; 74,034;         851         16
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
    Gray seal \4\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,300 (0.22; 22,785;       1,389      4,453
                                                                                                             2016).

[[Page 9009]]

 
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments
  (Hayes et al., 2022). CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ 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.
\5\ The values represent abundance estimates from NMFS 2021 Stock Assessment Report (Hayes et al., 2022). On Monday, October 24, 2022, the North
  Atlantic Right Whale Consortium announced that the North Atlantic right whale population estimate for 2021 was 340 individuals. NMFS' website also
  indicates that less than 350 animals remain (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).

    Of the 40 marine mammal species and/or stocks with geographic 
ranges that include the western North Atlantic OCS (Table 5 in Sunrise 
Wind ITA application), 24 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. The following species are not expected 
to occur in the project area due to the location of preferred habitat 
outside the SRWF and SRWEC based on the best scientific information 
available: Dwarf and pygmy sperm whales (Kogia sima and K breviceps), 
northern bottlenose whale (hyperoodon ampullatus), cuvier's beaked 
whale (Ziphius cavirostris), four species of Mesoplodont beaked whales 
(Mesoplodon densitostris, M. europaeus, M. mirus, and M. bidens), 
killer whale (Orcinus orca), false killer whale (Pseudorca crassidens), 
pygmy killer whale (Feresa attenuate), short-finned pilot whale 
(Globicephalus macrohynchus), melon-headed whale (Peponocephala 
electra), Fraser's dolphin (Lagenodelphis hosei), white-beaked dolphin 
(Lagenorhynchus albirotris), pantropical spotted dolphin (Stenella 
attenuata), Clymene dolphin (Stenella clymene), striped dolphin 
(Stenella coeruleoalba), spinner dolphin (Stenella longirostris), 
rough-toothed dolphin (Steno bredanensis), and the northern migratory 
coastal stock of common bottlenose dolphins (Tursiops truncatus 
truncatus). The following species may occur in the project area but at 
such low densities that take is not anticipated: hooded seal 
(Cystophora cristata) and harp seal (Pagophilus groenlandica).
    In addition, the Florida manatees (Trichechus manatus; a sub-
species of the West Indian manatee) has been previously documented as 
an occasional visitor to the Northeast region during summer months 
(U.S. Fish and Wildlife Service (USFWS, 2019). However, manatees are 
managed by the USFWS and are not considered further in this document.
    Between October 2011 and June 2015, a total of 76 aerial surveys 
were conducted throughout the MA and RI/MA WEAs (the SRWF is contained 
within the RI/MA WEA along with several other offshore renewable energy 
Lease Areas). Between November 2011 and March 2015, Marine Autonomous 
Recording Units (MARU; a type of static passive acoustic monitoring 
(PAM) recorder) were deployed at nine sites in the MA and RI/MA WEAs. 
The goal of the study was to collect visual and acoustic baseline data 
on distribution, abundance, and temporal occurrence patterns of marine 
mammals (Kraus et al., 2016). The New England Aquarium conducted 
additional aerial surveys throughout the MA and RI/MA WEAs from 
February 2017 through July 2018 (38 surveys), October 2018 through 
August 2019 (40 surveys), and March 2020 through July 2021 (12 surveys) 
(Quintana and Kraus, 2019; O'Brien et al., 2021a; O'Brien et al., 
2021b). The lack of detections of any of the 24 species listed above 
during these surveys reinforces the fact that they are not expected to 
occur in the project area. In addition, none of these species were 
observed during HRG surveys conducted by Orsted in from 2018 to 2021. 
As these species are not expected to occur in the project area during 
the proposed activities, NMFS does not propose to authorize take of 
these species, and they are not discussed further in this document.
    As indicated above, all 16 species and stocks in Table 4 temporally 
and spatially co-occur with the activity to the degree that take is 
reasonably likely to occur. Five of the marine mammal species for which 
take is requested are listed as threatened or endangered under the ESA: 
North Atlantic right, blue, fin, sei, and sperm whales. In addition to 
what is included in Sections 3 and 4 of Sunrise Wind's ITA application 
(https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind), the SARs 
(https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), and NMFS' website (https://www.fisheries.noaa.gov/species-directory/marine-mammals), we provide 
further detail below informing the baseline for select species (e.g., 
information regarding current Unusual Mortality Events (UME) and known 
important habitat areas, such as Biologically Important Areas (BIAs) 
(Van Parijs, 2015)). There are no ESA-designated critical habitats for 
any species within the project area.
    Under the MMPA, a UME is defined as ``a stranding that is 
unexpected; involves a significant die-off of any marine mammal 
population; and demands immediate response'' (16 U.S.C. 1421h(6)). As 
of November 7, 2022, seven UMEs are active. Five of these UMEs are 
occurring along the U.S. Atlantic coast for various marine mammal 
species; of these, the most relevant to the Sunrise Wind project are 
the minke whale, North Atlantic right whale, humpback whale, and harbor 
and gray seal UMEs given the prevalence of these species in the project 
area. More information on UMEs, including all active, closed, or 
pending, can be found on NMFS' website at https://
www.fisheries.noaa.gov/national/marine-life-distress/

[[Page 9010]]

active-and-closed-unusual-mortality-events.
    Below we include information for a subset of the species that 
presently have an active or recently closed UME occurring along the 
Atlantic coast or for which there is information available related to 
areas of biological significance. For the majority of species 
potentially present in the specific geographic region, NMFS has 
designated only a single generic stock (e.g., ``western North 
Atlantic'') for management purposes. This includes the ``Canadian east 
coast'' stock of minke whales, which includes all minke whales found in 
U.S. waters and is also a generic stock for management purposes. For 
humpback and sei whales, NMFS defines stocks on the basis of feeding 
locations (i.e., Gulf of Maine and Nova Scotia, respectively). However, 
references to humpback whales and sei whales in this document refer to 
any individuals of the species that are found in the project area. Any 
areas of known biological importance (including the BIAs identified in 
La Brecque et al., 2015) that overlap spatially with the project area 
are addressed in the species sections below.

North Atlantic Right Whale

    The North Atlantic right whale has been listed as Endangered since 
the ESA's enactment in 1973. The species was recently uplisted from 
Endangered to Critically Endangered on the International Union for 
Conservation of Nature (IUCN) Red List of Threatened Species (Cooke, 
2020). The uplisting was due to a decrease in population size (Pace et 
al., 2017), an increase in vessel strikes and entanglements in fixed 
fishing gear (Daoust et al., 2017; Davis & Brillant, 2019; Knowlton et 
al., 2012; Knowlton et al., 2022; Moore et al., 2021; Sharp et al., 
2019), and a decrease in birth rate (Pettis et al., 2021; Reed et al., 
2022). The Western Atlantic stock is considered depleted under the MMPA 
(Hayes et al., 2022). There is a recovery plan (NOAA Fisheries, 2005) 
for the North Atlantic right whale, and NMFS completed 5-year reviews 
of the species in 2012 and 2017 (NOAA Fisheries, 2012; NOAA Fisheries, 
2017). In February 2022, NMFS initiated a subsequent 5-year review 
process (https://www.fisheries.noaa.gov/action/initiation-5-year-review-north-atlantic-right-whale). Designated by NMFS as a Species in 
the Spotlight, the North Atlantic right whale is considered among the 
species with the greatest risk of extinction in the near future 
(https://www.fisheries.noaa.gov/topic/endangered-species-conservation/species-in-the-spotlight).
    The North Atlantic right whale population had only a 2.8 percent 
recovery rate between 1990 and 2011 and an overall abundance decline of 
23.5percent from 2011-2019 (Hayes et al. 2022). Since 2010, the North 
Atlantic right whale population has been in decline (Pace et al., 2017; 
Pace et al., 2021), with a 40 percent decrease in calving rate (Kraus 
et al., 2016; Moore et al., 2021). North Atlantic right whale calving 
rates dropped from 2017 to 2020 with zero births recorded during the 
2017-2018 season. The 2020-2021 calving season had the first 
substantial calving increase in 5 years with 20 calves born followed by 
15 calves during the 2021-2022 calving season. However, mortalities 
continue to outpace births, and best estimates indicate fewer than 100 
reproductively active females remain in the population. Presently, the 
best available peer-reviewed population estimate for North Atlantic 
right whales is 368 per the 2021 SARs (Hayes et al., 2022). As of this 
writing, the draft 2022 SARs have yet to be released; however, as 
reflected on NMFS' species web page, new estimates indicate that the 
right whale population has continued to decline to fewer than 350 
animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). We note that the application of either abundance estimate in 
our analysis would not change the estimated take of right whales or the 
take NMFS has proposed to authorize as take estimates are based on the 
habitat-density models (Roberts and Halpin 2022).
    Since 2017, dead, seriously injured, or sublethally injured or ill 
North Atlantic right whales along the U.S. and Canadian coasts have 
been documented, necessitating a UME declaration and investigation. The 
leading category for the cause of death for this ongoing UME is ``human 
interaction,'' specifically from entanglements or vessel strikes. As of 
January 12, 2023, there have been 35 confirmed mortalities (dead 
stranded or floaters; 21 in Canada; 14 in the United States) and 22 
seriously injured free-swimming whales for a total of 57 whales. 
Beginning on October 14, 2022, the UME also considers animals with 
sublethal injury or illness bringing the total number of whales in the 
UME to 94. Approximately 42 percent of the population is known to be in 
reduced health (Hamilton et al., 2021) likely contributing to smaller 
body sizes at maturation, making them more susceptible to threats and 
reducing fecundity (Moore et al., 2021; Reed et al., 2022; Stewart et 
al., 2022). More information about the North Atlantic right whale UME 
is available online at www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
    North Atlantic right whale presence in the project area is 
predominately seasonal; however, year-round occurrence is documented 
with irregular occurrence during summer months (O'Brien et al., 2022, 
Quintano-Rizzo et al., 2021). As a result of recent years of aerial 
surveys and PAM deployments within the RI/MA WEA, we have confidence 
that North Atlantic right whales are expected in the project area with 
higher numbers of animals present in winter and spring followed by 
decreasing abundance into summer and early fall (e.g., (O'Brien et al., 
2022, Quintano-Rizzo et al., 2021). The project area both spatially and 
temporally overlaps a portion of the migratory corridor BIA within 
which North Atlantic right whales migrate south to calving grounds 
generally in November and December, followed by a northward migration 
into feeding areas east and north of the project area in March and 
April (LaBrecque et al., 2015; Van Parijs et al., 2015). While the 
project does not overlap previously identified critical feeding habitat 
or a feeding BIA, it is located west of a more recently described 
important feeding area south of Martha's Vineyard and Nantucket along 
the western side of Nantucket Shoals. Finally, the project overlaps the 
currently established November 1 through April 30th Block Island 
Seasonal Management Area (SMA) (73 FR 60173, October 10, 2008) and the 
proposed November 1 through May 30th Atlantic Seasonal Speed Zone (87 
FR 46921, August 1, 2022), which may be used by North Atlantic right 
whales for various activities, including feeding and migration. Due to 
the current status of North Atlantic right whales and the overlap of 
the proposed project with areas of biological significance (i.e., a 
migratory corridor, SMA), the potential impacts of the proposed project 
on North Atlantic right whales warrant particular attention.
    Southern New England and New York waters are both a migratory 
corridor in the spring and early winter and a primary feeding habitat 
for North Atlantic right whales during late winter through spring. 
North Atlantic right whales feed primarily on the copepod Calanus 
finmarchicus, a species whose availability and distribution has changed 
both spatially and temporally over the last decade due to an 
oceanographic regime shift that has been ultimately linked to climate 
change (Meyer-Gutbrod et al., 2021;

[[Page 9011]]

Record et al., 2019; Sorochan et al., 2019). This distribution change 
in prey availability has led to shifts in North Atlantic right whale 
habitat-use patterns within the region over the same time period (Davis 
et al., 2020; Meyer-Gutbrod et al., 2022; Quintano-Rizzo et al., 2021, 
O'Brien et al., 2022). Since 2010, North Atlantic right whales have 
reduced their use of foraging habitats in the Great South Channel and 
Bay of Fundy while increasing their use of habitat within Cape Cod Bay 
as well as a region south of Martha's Vineyard and Nantucket Islands to 
the east of the SRWF and SRWEC corridor (Stone et al., 2017; Mayo et 
al., 2018; Ganley et al., 2019; Record et al., 2019; Meyer-Gutbrod et 
al., 2021). Pendleton et al. (2022) found that peak use of North 
Atlantic right whale foraging habitat in Cape Cod Bay has shifted over 
the past 20 years to later in the spring, likely due to variations in 
seasonal conditions. However, initial sightings of individual North 
Atlantic right whales in Cape Cod Bay have started earlier, indicating 
that they may be using regional water temperature as a cue for 
migratory movements between habitats (Ganley et al. 2022). North 
Atlantic right whales have recently been observed feeding year-round in 
the region south of Martha's Vineyard and Nantucket (Quintana-Rizzo et 
al., 2021) with larger numbers in this area in the winter making it the 
only known winter foraging habitat for the species (Leiter et al., 
2017). North Atlantic right whale use of habitats, such as in the Gulf 
of St. Lawrence and East Coast mid-Atlantic waters of the United 
States., have also increased over time (Davis et al., 2017; Davis and 
Brillant, 2019; Crowe et al., 2021; Quintana-Rizzo et al., 2021). 
Simard et al. (2019) documented the presence of North Atlantic right 
whales in the southern Gulf of St. Lawrence foraging habitat from late 
April through mid-January annually from 2010-2018 using passive 
acoustics with occurrences peaking in the area from August through 
November each year (Simard et al., 2019). Observations of these 
transitions in North Atlantic right whale habitat use, variability in 
seasonal presence in identified core habitats, and utilization of 
habitat outside of previously focused survey effort prompted the 
formation of a NMFS' Expert Working Group, which identified current 
data collection efforts, data gaps, and provided recommendations for 
future survey and research efforts (Oleson et al., 2020).
    Around November, a portion of the North Atlantic right whale 
population (including pregnant females) typically departs the feeding 
grounds in the North Atlantic, move south along the migratory corridor 
BIA, including through the project area, to North Atlantic right whale 
calving grounds off Georgia and Florida. However, recent research 
indicates understanding of their movement patterns remains incomplete 
and not all of the population undergoes a consistent annual migration 
(Davis et al., 2017; Gowan et al., 2019; Krzystan et al., 2018). The 
results of multistate temporary emigration capture-recapture modeling, 
based on sighting data collected over the past 22 years, indicate that 
non-calving females may remain in the feeding grounds during the winter 
in the years preceding and following the birth of a calf to increase 
their energy stores (Gowen et al., 2019).
    Within the project area, North Atlantic right whales have primarily 
been observed during the winter and spring seasons through recent 
visual surveys (Kraus et al., 2016; Quintana-Rizzo et al., 2021). 
During aerial surveys conducted in the RI/MA and MA WEAs from 2011-
2015, the highest number of North Atlantic right whale sightings 
occurred in March (n=21), with sightings also occurring in December 
(n=4), January (n=7), February (n=14), and April (n=14), and no 
sightings in any other months (Kraus et al., 2016). There was not 
significant variability in sighting rate among years, indicating 
consistent annual seasonal use of the area by North Atlantic right 
whales. Despite the lack of visual detection, North Atlantic right 
whales were acoustically detected in 30 out of the 36 recorded months 
(Kraus et al., 2016). Since 2017, whales have been sighted in the 
southern New England area nearly every month with peak sighting rates 
between late winter and spring. Model outputs suggest that 23 percent 
of the North Atlantic right whale population is present from December 
through May, and the mean residence time has tripled to an average of 
13 days during these months (Quintano-Rizzo et al., 2021).
    North Atlantic right whale distribution can also be derived from 
acoustic data. A review of passive acoustic monitoring data from 2004 
to 2014 collected throughout the western North Atlantic demonstrated 
nearly continuous year-round North Atlantic right whale presence across 
their entire habitat range with a decrease in summer months, including 
in locations previously thought of as migratory corridors suggesting 
that not all of the population undergoes a consistent annual migration 
(Davis et al., 2017). To describe seasonal trends in North Atlantic 
right whale presence, Estabrook et al. (2022) analyzed North Atlantic 
right whale acoustic detections collected between 2011-2015 during 
winter (January-March), spring (April-June), summer (July-September), 
and autumn (October-December). Winter had the highest presence 
(75percent array-days, n = 193), and summer had the lowest presence 
(10percent array-days, n = 27). Spring and autumn were similar, where 
45percent (n = 117) and 51percent (n = 121) of the array-days had 
detections, respectively. Across all years, detections were 
consistently lowest in August and September. In Massachusetts Bay and 
Cape Cod Bay, located outside of the project area, acoustic detections 
of North Atlantic right whales increased in more recent years in both 
the peak season of late winter through early spring and in summer and 
fall, likely reflecting broadscale regional habitat changes (Charif et 
al., 2020). NMFS' Passive Acoustic Cetacean Map (PACM) contains up-to-
date acoustic data that contributes to our understanding of when and 
where specific whales (including North Atlantic right whales), dolphin, 
and other cetacean species are acoustically detected in the North 
Atlantic. These data support the findings of the aforementioned 
literature.
    While density data from Roberts et al. (2022) confirm that the 
highest average density of North Atlantic right whales in the project 
area (both the lease area and SRWEC corridor) occurs in May (0.0018 
whales/km\2\), which aligns with available sighting and acoustic data, 
it is clear that that habitat use is changing and North Atlantic right 
whales are present to some degree in or near the project area 
throughout the year, most notably south of Martha's Vineyard and 
Nantucket Islands (Leiter et al., 2017; Stone et al., 2017; Oleson et 
al., 2020, Quintano-Rizzo et al., 2021). Since 2010, North Atlantic 
right whale abundances have increased in Southern New England waters, 
south of Martha's Vineyard and Nantucket Islands. O'Brien et al. (2022) 
detected significant increases in North Atlantic right whale abundance 
during winter and spring seasons from 2013-2019 likely due to changes 
in prey availability. Since 2017, North Atlantic right whales were also 
detected in small numbers during summer and fall, suggesting that 
southern New England waters provide year-round habitat for North 
Atlantic right whales (O'Brien et al., 2022).
    NMFS' regulations at 50 CFR 224.105 designate nearshore waters of 
the Mid-Atlantic Bight as the Mid-Atlantic U.S. SMAs for North Atlantic 
right whales in 2008. These specific SMAs were

[[Page 9012]]

developed to reduce the threat of collisions between ships and North 
Atlantic right whales around their migratory route and calving grounds. 
As mentioned previously, the Block Island SMA overlaps spatially with 
the proposed project area (https://apps-nefsc.fisheries.noaa.gov/psb/surveys/MapperiframeWithText.html). The SMA is currently active from 
November 1 through April 30 of each year and may be used by North 
Atlantic right whales for feeding (although to a lesser extent than the 
area to the east near Nantucket Shoals) and/or migrating. As noted 
above, NMFS is proposing changes to the North Atlantic right whale 
speed rule (87 FR 46921; August 1, 2022).

Humpback Whale

    Humpback whales were listed as endangered under the Endangered 
Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced 
the ESCA, and humpbacks continued to be listed as endangered. On 
September 8, 2016, NMFS divided the once single species into 14 
distinct population segments (DPS), removed the species-level listing, 
and, in its place, listed 4 DPSs as endangered and 1 DPS as threatened 
(81 FR 62259, September 8, 2016). The remaining nine DPSs were not 
listed. The West Indies DPS, which is not listed under the ESA, is the 
only DPS of humpback whales that is expected to occur in the project 
area. Bettridge et al. (2015) estimated the size of the West Indies DPS 
population at 12,312 (95 percent CI 8,688-15,954) whales in 2004-05, 
which is consistent with previous population estimates of approximately 
10,000-11,000 whales (Stevick et al., 2003; Smith et al., 1999) and the 
increasing trend for the West Indies DPS (Bettridge et al., 2015).
    In New England waters, feeding is the principal activity of 
humpback whales, and their distribution in this region has been largely 
correlated to abundance of prey species (Payne et al., 1986, 1990). 
Humpback whales are frequently piscivorous when in New England waters, 
feeding on herring (Clupea harengus), sand lance (Ammodytes spp.), and 
other small fishes, as well as euphausiids in the northern Gulf of 
Maine (Paquet et al., 1997). Kraus et al. (2016) observed humpbacks in 
the RI/MA & MA WEAs and surrounding areas during all seasons but most 
often during spring and summer months with a peak from April to June. 
Acoustic data indicate that this species may be present within the RI/
MA WEA year-round with the highest rates of acoustic detections in the 
winter and spring (Kraus et al., 2016).
    The project area does not overlap any ESA-designated critical 
habitat, BIAs, or other important areas for the humpback whales. A 
humpback whale feeding BIA extends throughout the Gulf of Maine, 
Stellwagen Bank, and Great South Channel from May through December, 
annually (LeBrecque et al., 2015). However, this BIA is located further 
east and north of, and thus, does not overlap, the project area.
    Since January 2016, elevated humpback whale mortalities along the 
Atlantic coast from Maine to Florida led to the declaration of a UME. 
As of January 12, 2023, 174 humpback whales have stranded as part of 
this UME. Partial or full necropsy examinations have been conducted on 
approximately half of the 161 known cases (as of November 7, 2022). Of 
the whales examined, about 50 percent had evidence of human 
interaction, either ship strike or entanglement. While a portion of the 
whales have shown evidence of pre-mortem vessel strike, this finding is 
not consistent across all whales examined and more research is needed. 
NOAA is consulting with researchers that are conducting studies on the 
humpback whale populations, and these efforts may provide information 
on changes in whale distribution and habitat use that could provide 
additional insight into how these vessel interactions occurred. More 
information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Fin Whale

    Fin whales typically feed in the Gulf of Maine and the waters 
surrounding New England, but their mating and calving (and general 
wintering) areas are largely unknown (Hain et al. 1992, Hayes et al. 
2022). Acoustic detections of fin whale singers augment and confirm 
these visual sighting conclusions for males. Recordings from 
Massachusetts Bay, New York Bight, and deep-ocean areas have detected 
some level of fin whale singing from September through June (Watkins et 
al. 1987, Clark and Gagnon 2002, Morano et al. 2012). These acoustic 
observations from both coastal and deep-ocean regions support the 
conclusion that male fin whales are broadly distributed throughout the 
western North Atlantic for most of the year (Hayes et al. 2022).
    Kraus et al. (2016) suggest that, compared to other baleen whale 
species, fin whales have a high multi-seasonal relative abundance in 
the RI/MA & MA WEAs and surrounding areas. Fin whales were observed in 
the MA WEA in spring and summer. This species was observed primarily in 
the offshore (southern) regions of the RI/MA & MA WEAs during spring 
and was found closer to shore (northern areas) during the summer months 
(Kraus et al., 2016). Calves were observed three times and feeding was 
observed nine times during the Kraus et al. (2016) study. Although fin 
whales were largely absent from visual surveys in the RI/MA & MA WEAs 
in the fall and winter months (Kraus et al., 2016), acoustic data 
indicated that this species was present in the RI/MA & MA WEAs during 
all months of the year.
    New England waters represent a major feeding ground for fin whales. 
Almost the entire lease area (351 km\2\) overlaps approximately 12 
percent of a relatively small fin whale feeding BIA (2,933 km\2\) 
offshore of Montauk Point, New York from March to October (Hain et al., 
1992; LaBrecque et al. 2015). A separate larger year-round feeding BIA 
(18,015 km\2\) located far to the northeast in the southern Gulf of 
Maine does not overlap with the project area and would thus not be 
impacted by project activities.

Minke Whale

    Minke whale occurrence is common and widespread in New England from 
spring to fall, although the species is largely absent in the winter 
(Hayes et al., 2022; Risch et al., 2013). Surveys conducted in the RI/
MA WEAs from October 2011 through June 2015 reported 103 minke whale 
sightings within the area, predominantly in the spring followed by 
summer and fall (Kraus et al., 2016). Recent surveys conducted in the 
RI/MA WEAs from February 2017 through July 2018, October 2018 through 
August 2019, and March 2020 through July 2021 documented minke whales 
as the most common rorqual (baleen whales with pleated throat grooves) 
sighted in the WEAs. Surveys also reported a shift in the greatest 
seasonal abundance of minke whales from spring (2017-2018) (Quintana 
and Kraus, 2018) to summer (2018-2019 and 2020-2021) (O'Brien et al., 
2021a, b).
    There are two minke whale feeding BIAs identified in the southern 
and southwestern section of the Gulf of Maine, including Georges Bank, 
the Great South Channel, Cape Cod Bay and Massachusetts Bay, Stellwagen 
Bank, Cape Anne, and Jeffreys Ledge from March through November, 
annually (LeBrecque et al., 2015). However, these BIAs do not overlap 
the project area as they are located further east and north. A 
migratory route for minke whales transiting between northern feeding 
grounds and southern breeding areas

[[Page 9013]]

may exist to the east of the proposed project area as minke whales may 
trac warmer waters along the continental shelf while migrating (Risch 
et al., 2014).
    Since January 2017, elevated minke whale mortalities detected along 
the Atlantic coast from Maine through South Carolina resulted in the 
declaration of a UME. As of January 12 2023, a total of 136 minke 
whales have stranded during this UME. Full or partial necropsy 
examinations were conducted on more than 60 percent of the whales. 
Preliminary findings in several of the whales have shown evidence of 
human interactions or infectious disease, but these findings are not 
consistent across all of the minke whales examined, so more research is 
needed. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-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 has been declared a UME. Preliminary testing of 
samples has found some harbor and gray seals positive for highly 
pathogenic avian influenza. While the UME is not occurring in the 
Sunrise Wind project area, the populations affected by the UME are the 
same as those potentially affected by the project.
    The above event was preceded by a different UME, occurring from 
2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July 
2018, elevated numbers of harbor seal and gray seal mortalities 
occurred across Maine, New Hampshire, and Massachusetts. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers, therefore the UME investigation 
encompassed all seal strandings from Maine to Virginia. A total of 
3,152 reported strandings (of all species) occurred from July 1, 2018, 
through March 13, 2020. Full or partial necropsy examinations have been 
conducted on some of the seals and samples have been collected for 
testing. Based on tests conducted thus far, the main pathogen found in 
the seals is phocine distemper virus. NMFS is performing additional 
testing to identify any other factors that may be involved in this UME, 
which is pending closure. Information on this UME is available online 
at: www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (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 5.

                  Table 5--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
                                               Generalized hearing range
                Hearing group                              *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen whales).  7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans (dolphins,        150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true            275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater) (true       50 Hz to 86 kHz.
 seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Sixteen marine mammal species (14 cetacean species (6 mysticetes and 8 
odontocetes) and 2 pinniped species (both phocid)) have the reasonable 
potential to co-occur with the proposed project activities (Table 4).
    NMFS notes that in 2019, Southall et al. recommended new names for 
hearing groups that are widely recognized. However, this new hearing 
group classification does not change the weighting functions or 
acoustic thresholds (i.e., the weighting functions and thresholds in 
Southall et al. (2019) are identical to NMFS 2018 Revised Technical 
Guidance). When NMFS updates our Technical Guidance, we will be 
adopting the updated Southall et al. (2019) hearing group 
classification.

Potential Effects of Specified Activities to Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take of Marine Mammals section later in 
this document includes a quantitative analysis of the number of 
individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take of Marine Mammals section, 
and the Proposed Mitigation

[[Page 9014]]

section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and how those impacts on individuals are likely to impact marine mammal 
species or stocks. General background information on marine mammal 
hearing was provided previously (see the Description of Marine Mammals 
in the Area of Specified Activities section). Here, the potential 
effects of sound on marine mammals are discussed.
    Sunrise Wind has requested authorization to take marine mammals 
incidental to construction activities associated with in the Sunrise 
Wind project area. In the ITA application, Sunrise Wind presented 
analyses of potential impacts to marine mammals from use of acoustic 
and explosive sources. NMFS carefully reviewed the information provided 
by Sunrise Wind and independently reviewed applicable scientific 
research and literature and other information to evaluate the potential 
effects of Sunrise Wind's activities on marine mammals.
    The proposed activities would result in placement of up to 95 
permanent foundations (94 WTGs and 1 OCS-DC) and a temporary casing 
pipe in the marine environment. Up to three UXO/MEC detonations may 
occur during construction if any found UXO/MEC cannot be removed by 
other means. There are a variety of types and degrees of effects to 
marine mammals, prey species, and habitat that could occur as a result 
of the project. Below we provide a brief description of the types of 
sound sources that would be generated by the project, the general 
impacts from these types of activities, and an analysis of the 
anticipated impacts on marine mammals from the project in consideration 
of the proposed mitigation measures.

Description of Sound Sources

    This section contains a brief technical background on sound, on the 
characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to a discussion of the potential effects of the specified 
activity on marine mammals found later in this document. For general 
information on sound and its interaction with the marine environment, 
please see, e.g., Au and Hastings (2008); Richardson et al. (1995); 
Urick (1983) as well as the Discovery of Sound in the Sea (DOSITS) 
website at https://dosits.org/.
    Sound is a vibration that travels as an acoustic wave through a 
medium such as a gas, liquid or solid. Sound waves alternately compress 
and decompress the medium as the wave travels. These compressions and 
decompressions are detected as changes in pressure by aquatic life and 
man-made sound receptors such as hydrophones (underwater microphones). 
In water, sound waves radiate in a manner similar to ripples on the 
surface of a pond and may be either directed in a beam (narrow beam or 
directional sources) or sound beams may radiate in all directions 
(omnidirectional sources).
    Sound travels in water more efficiently than almost any other form 
of energy, making the use of acoustics ideal for the aquatic 
environment and its inhabitants. In seawater, sound travels at roughly 
1,500 meters per second (m/s). In air, sound waves travel much more 
slowly at about 340 m/s. However, the speed of sound can vary by a 
small amount based on characteristics of the transmission medium such 
as water temperature and salinity.
    The basic components of a sound wave are frequency, wavelength, 
velocity, and amplitude. Frequency is the number of pressure waves that 
pass by a reference point per unit of time and is measured in Hz or 
cycles per second. Wavelength is the distance between two peaks or 
corresponding points of a sound wave (length of one cycle). Higher 
frequency sounds have shorter wavelengths than lower frequency sounds 
and typically attenuate (decrease) more rapidly except in certain cases 
in shallower water. The intensity (or amplitude) of sounds are measured 
in decibels (dB), which are a relative unit of measurement that is used 
to express the ratio of one value of a power or field to another. 
Decibels are measured on a logarithmic scale, so a small change in dB 
corresponds to large changes in sound pressure. For example, a 10 dB 
increase is a ten-fold increase in acoustic power. A 20 dB increase is 
then a 100-fold increase in power and a 30 dB increase is a 1000-fold 
increase in power. However, a ten-fold increase in acoustic power does 
not mean that the sound is perceived as being 10 times louder. Decibels 
are a relative unit comparing two pressures; therefore, a reference 
pressure must always be indicated. For underwater sound, this is 1 
microPascal ([mu]Pa). For in-air sound, the reference pressure is 20 
microPascal ([mu]Pa). The amplitude of a sound can be presented in 
various ways; however, NMFS typically considers three metrics.
    Sound exposure level (SEL) represents the total energy in a stated 
frequency band over a stated time interval or event and considers both 
amplitude and duration of exposure (represented as dB re 1 [mu]Pa\2\-
s). SEL is a cumulative metric; it can be accumulated over a single 
pulse (for pile driving this is often referred to as single-strike SEL; 
SELss) or calculated over periods containing multiple pulses 
(SELcum). Cumulative SEL represents the total energy 
accumulated by a receiver over a defined time window or during an 
event. The SEL metric is useful because it allows sound exposures of 
different durations to be related to one another in terms of total 
acoustic energy. The duration of a sound event and the number of 
pulses, however, should be specified as there is no accepted standard 
duration over which the summation of energy is measured. Sounds are 
typically classified by their spectral and temporal properties.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.
    Peak sound pressure (also referred to as zero-to-peak sound 
pressure or 0-pk) is the maximum instantaneous sound pressure 
measurable in the water at a specified distance from the source, and is 
represented in the same units as the rms sound pressure. Along with 
SEL, this metric is used in evaluating the potential for PTS (permanent 
threshold shift) and TTS (temporary threshold shift). Peak pressure is 
also used to evaluate the potential for gastro-intestinal tract injury 
(Level A harassment) from explosives.
    For explosives, an impulse metric (Pa-s), which is the integral of 
a transient sound pressure over the duration of the pulse, is used to 
evaluate the potential for mortality (i.e., severe lung injury) and 
slight lung injury. These impulse metric thresholds account for animal 
mass and depth.
    Sounds can be either impulsive or non-impulsive. The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see NMFS et 
al. (2018) and Southall et al. (2007,

[[Page 9015]]

2019) for an in-depth discussion of these concepts. Impulsive sound 
sources (e.g., airguns, explosions, gunshots, sonic booms, impact pile 
driving) produce signals that are brief (typically considered to be 
less than 1 second), broadband, atonal transients (ANSI, 1986, 2005; 
Harris, 1998; NIOSH, 1998; ISO, 2003) and occur either as isolated 
events or repeated in some succession. Impulsive sounds are all 
characterized by a relatively rapid rise from ambient pressure to a 
maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features. Impulsive 
sounds are typically intermittent in nature.
    Non-impulsive sounds can be tonal, narrowband, or broadband, brief 
or prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-impulsive sounds can be transient 
signals of short duration but without the essential properties of 
pulses (e.g., rapid rise time). Examples of non-impulsive sounds 
include those produced by vessels, aircraft, machinery operations such 
as drilling or dredging, vibratory pile driving, and active sonar 
systems.
    Sounds are also characterized by their temporal component. 
Continuous sounds are those whose sound pressure level remains above 
that of the ambient sound with negligibly small fluctuations in level 
(NIOSH, 1998; ANSI, 2005) while intermittent sounds are defined as 
sounds with interrupted levels of low or no sound (NIOSH, 1998). NMFS 
identifies Level B harassment thresholds based on if a sound is 
continuous or intermittent.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (ICES, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 1 
kHz, and if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but also on the ability of 
sound to propagate through the environment. In turn, sound propagation 
is dependent on the spatially and temporally varying properties of the 
water column and sea floor and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a given frequency and location can 
vary by 10-20 dB from day to day (Richardson et al., 1995). The result 
is that, depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals. Underwater ambient sound in the Atlantic Ocean southeast of 
Rhode Island comprises sounds produced by a number of natural and 
anthropogenic sources. Human-generated sound is a significant 
contributor to the acoustic environment in the project location.

Potential Effects of Underwater Sound on Marine Mammals and Their 
Habitat

    Anthropogenic sounds cover a broad range of frequencies and sound 
levels and can have a range of highly variable impacts on marine life 
from none or minor to potentially severe responses depending on 
received levels, duration of exposure, behavioral context, and various 
other factors. Broadly, underwater sound from active acoustic sources, 
such as those in the Sunrise Wind project, can potentially result in 
one or more of the following: temporary or permanent hearing 
impairment, non-auditory physical or physiological effects, behavioral 
disturbance, stress, and masking (Richardson et al., 1995; Gordon et 
al., 2003; Nowacek et al., 2007; Southall et al., 2007; G[ouml]tz et 
al., 2009). Non-auditory physiological effects or injuries that 
theoretically might occur in marine mammals exposed to high level 
underwater sound or as a secondary effect of extreme behavioral 
reactions (e.g., change in dive profile as a result of an avoidance 
reaction) caused by exposure to sound include neurological effects, 
bubble formation, resonance effects, and other types of organ or tissue 
damage (Cox et al., 2006; Southall et al., 2007; Zimmer and Tyack, 
2007; Tal et al., 2015). Potential effects from explosive sound sources 
can range in severity from behavioral disturbance or tactile perception 
to physical discomfort, slight injury of the internal organs and the 
auditory system, or mortality (Yelverton et al., 1973).
    In general, the degree of effect of an acoustic exposure is 
intrinsically related to the signal characteristics, received level, 
distance from the source, and duration of the sound exposure, in 
addition to the contextual factors of the receiver (e.g., behavioral 
state at time of exposure, age class, etc). In general, sudden, high 
level sounds can cause hearing loss as can longer exposures to lower 
level sounds. Moreover, any temporary or permanent loss of hearing will 
occur almost exclusively for noise within an animal's hearing range. We 
describe below the specific manifestations of acoustic effects that may 
occur based on the activities proposed by Sunrise Wind.
    Richardson et al. (1995) described zones of increasing intensity of 
effect that might be expected to occur in relation to distance from a 
source and assuming that the signal is within an animal's hearing 
range. First (at the greatest distance) is the area within which the 
acoustic signal would be audible (potentially perceived) to the animal 
but not strong enough to elicit any overt behavioral or physiological 
response. The next zone (closer to the receiving animale) corresponds 
with the area where the signal is audible to the animal and of 
sufficient intensity to elicit behavioral or physiological 
responsiveness. The third is a zone within which, for signals of high 
intensity, the received level is sufficient to potentially cause 
discomfort or tissue damage to auditory or other systems. Overlaying 
these zones to a certain

[[Page 9016]]

extent is the area within which masking (i.e., when a sound interferes 
with or masks the ability of an animal to detect a signal of interest 
that is above the absolute hearing threshold) may occur; the masking 
zone may be highly variable in size.
    Below, we provide additional detail regarding potential impacts on 
marine mammals and their habitat from noise in general, starting with 
hearing impairment, as well as from the specific activities Sunrise 
Wind plans to conduct, to the degree it is available (noting that there 
is limited information regarding the impacts of offshore wind 
construction on marine mammals).
Threshold Shift
    Marine mammals exposed to high-intensity sound or to lower-
intensity sound for prolonged periods can experience hearing threshold 
shift (TS), which NMFS defines as a change, usually an increase, in the 
threshold of audibility at a specified frequency or portion of an 
individual's hearing range above a previously established reference 
level expressed in decibels (NMFS, 2018). Threshold shifts can be 
permanent, in which case there is an irreversible increase in the 
threshold of audibility at a specified frequency or portion of an 
individual's hearing range or temporary, in which there is reversible 
increase in the threshold of audibility at a specified frequency or 
portion of an individual's hearing range and the animal's hearing 
threshold would fully recover over time (Southall et al., 2019). 
Repeated sound exposure that leads to TTS could cause PTS.
    When PTS occurs, there can be physical damage to the sound 
receptors in the ear (i.e., tissue damage) whereas TTS represents 
primarily tissue fatigue and is reversible (Henderson et al., 2008). In 
addition, other investigators have suggested that TTS is within the 
normal bounds of physiological variability and tolerance and does not 
represent physical injury (e.g., Ward, 1997; Southall et al., 2019). 
Therefore, NMFS does not consider TTS to constitute auditory injury.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals, and there is no PTS data for cetaceans. However, 
such relationships are assumed to be similar to those in humans and 
other terrestrial mammals. Noise exposure can result in either a 
permanent shift in hearing thresholds from baseline (PTS; a 40 dB 
threshold shift approximates a PTS onset; e.g., Kryter et al., 1966; 
Miller, 1974; Henderson et al., 2008) or a temporary, recoverable shift 
in hearing that returns to baseline (a 6 dB threshold shift 
approximates a TTS onset; e.g., Southall et al., 2019). Based on data 
from terrestrial mammals, a precautionary assumption is that the PTS 
thresholds, expressed in the unweighted peak sound pressure level 
metric (PK), for impulsive sounds (such as impact pile driving pulses) 
are at least 6 dB higher than the TTS thresholds and the weighted PTS 
cumulative sound exposure level thresholds are 15 (impulsive sound) to 
20 (non-impulsive sounds) dB higher than TTS cumulative sound exposure 
level thresholds (Southall et al., 2019). Given the higher level of 
sound or longer exposure duration necessary to cause PTS as compared 
with TTS, PTS is less likely to occur as a result of these activities, 
but it is possible and a small amount has been proposed for 
authorization for several species.
    TTS is the mildest form of hearing impairment that can occur during 
exposure to sound, with a TTS of 6 dB considered the minimum threshold 
shift clearly larger than any day-to-day or session-to-session 
variation in a subject's normal hearing ability (Schlundt et al., 2000; 
Finneran et al., 2000; Finneran et al., 2002). While experiencing TTS, 
the hearing threshold rises, and a sound must be at a higher level in 
order to be heard. In terrestrial and marine mammals, TTS can last from 
minutes or hours to days (in cases of strong TTS). In many cases, 
hearing sensitivity recovers rapidly after exposure to the sound ends. 
There is data on sound levels and durations necessary to elicit mild 
TTS for marine mammals, but recovery is complicated to predict and 
dependent on multiple factors.
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
depending on the degree of interference of marine mammals hearing. For 
example, a marine mammal may be able to readily compensate for a brief, 
relatively small amount of TTS in a non-critical frequency range that 
occurs during a time where ambient noise is lower and there are not as 
many competing sounds present. Alternatively, a larger amount and 
longer duration of TTS sustained during time when communication is 
critical (e.g. for successful mother/calf interactions, consistent 
detection of prey) could have more serious impacts.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor 
porpoise, and Yangtze finless porpoise (Neophocoena asiaeorientalis)) 
and six species of pinnipeds (northern elephant seal (Mirounga 
angustirostris), harbor seal, ring seal, spotted seal, bearded seal, 
and California sea lion (Zalophus californianus)) that were exposed to 
a limited number of sound sources (i.e., mostly tones and octave-band 
noise with limited number of exposure to impulsive sources such as 
seismic airguns or impact pile driving) in laboratory settings 
(Southall et al., 2019). There is currently no data available on noise-
induced hearing loss for mysticetes. For summaries of data on TTS or 
PTS in marine mammals or for further discussion of TTS or PTS onset 
thresholds, please see Southall et al. (2019), and NMFS (2018).
    Recent studies with captive odontocete species (bottlenose dolphin, 
harbor porpoise, beluga, and false killer whale) have observed 
increases in hearing threshold levels when individuals received a 
warning sound prior to exposure to a relatively loud sound (Nachtigall 
and Supin, 2013, 2015, Nachtigall et al., 2016a,b,c, Finneran, 2018, 
Nachtigall et al., 2018). These studies suggest that captive animals 
have a mechanism to reduce hearing sensitivity prior to impending loud 
sounds. Hearing change was observed to be frequency dependent and 
Finneran (2018) suggests hearing attenuation occurs within the cochlea 
or auditory nerve. Based on these observations on captive odontocetes, 
the authors suggest that wild animals may have a mechanism to self-
mitigate the impacts of noise exposure by dampening their hearing 
during prolonged exposures of loud sound or if conditioned to 
anticipate intense sounds (Finneran, 2018, Nachtigall et al., 2018).
Behavioral Disturbance
    Exposure of marine mammals to sound sources can result in, but is 
not limited to, no response or any of the following observable 
responses: increased alertness; orientation or attraction to a sound 
source; vocal modifications; cessation of feeding; cessation of social 
interaction; alteration of movement or diving behavior; habitat 
abandonment (temporary or permanent); and, in severe cases, panic, 
flight, stampede, or stranding, potentially resulting in death 
(Southall et al., 2007). A review of marine mammal responses

[[Page 9017]]

to anthropogenic sound was first conducted by Richardson (1995). More 
recent reviews (Nowacek et al., 2007; DeRuiter et al., 2012 and 2013; 
Ellison et al., 2012; Gomez et al., 2016) address studies conducted 
since 1995 and focused on observations where the received sound level 
of the exposed marine mammal(s) was known or could be estimated. Gomez 
et al. (2016) conducted a review of the literature considering the 
contextual information of exposure in addition to received level and 
found that higher received levels were not always associated with more 
severe behavioral responses and vice versa. Southall et al. (2021) 
states that results demonstrate that some individuals of different 
species display clear yet varied responses, some of which have negative 
implications while others appear to tolerate high levels and that 
responses may not be fully predictable with simple acoustic exposure 
metrics (e.g., received sound level). Rather, the authors state that 
differences among species and individuals along with contextual aspects 
of exposure (e.g., behavioral state) appear to affect response 
probability. Behavioral responses to sound are highly variable and 
context-specific. Many different variables can influence an animal's 
perception of and response to (nature and magnitude) an acoustic event. 
An animal's prior experience with a sound or sound source affects 
whether it is less likely (habituation) or more likely (sensitization) 
to respond to certain sounds in the future (animals can also be 
innately predisposed to respond to certain sounds in certain ways) 
(Southall et al., 2019). Related to the sound itself, the perceived 
nearness of the sound, bearing of the sound (approaching vs. 
retreating), the similarity of a sound to biologically relevant sounds 
in the animal's environment (i.e., calls of predators, prey, or 
conspecifics), and familiarity of the sound may affect the way an 
animal responds to the sound (Southall et al., 2007, DeRuiter et al., 
2013). Individuals (of different age, gender, reproductive status, 
etc.) among most populations will have variable hearing capabilities, 
and differing behavioral sensitivities to sounds that will be affected 
by prior conditioning, experience, and current activities of those 
individuals. Often, specific acoustic features of the sound and 
contextual variables (i.e., proximity, duration, or recurrence of the 
sound or the current behavior that the marine mammal is engaged in or 
its prior experience), as well as entirely separate factors such as the 
physical presence of a nearby vessel, may be more relevant to the 
animal's response than the received level alone. Overall, the 
variability of responses to acoustic stimuli depends on the species 
receiving the sound, the sound source, and the social, behavioral, or 
environmental contexts of exposure (e.g., DeRuiter et al., 2012). For 
example, Goldbogen et al. (2013) demonstrated that individual 
behavioral state was critically important in determining response of 
blue whales to sonar, noting that some individuals engaged in deep 
(greater than 50 m) feeding behavior had greater dive responses than 
those in shallow feeding or non-feeding conditions. Some blue whales in 
the Goldbogen et al. (2013) study that were engaged in shallow feeding 
behavior demonstrated no clear changes in diving or movement even when 
received levels were high (~160 dB re 1[micro]Pa) for exposures to 3-4 
kHz sonar signals, while deep feeding and non-feeding whales showed a 
clear response at exposures at lower received levels of sonar and 
pseudorandom noise. Southall et al. 2011 found that blue whales had a 
different response to sonar exposure depending on behavioral state, 
more pronounced when deep feeding/travel modes than when engaged in 
surface feeding.
    With respect to distance influencing disturbance, DeRuiter et al. 
(2013) examined behavioral responses of Cuvier's beaked whales to MF 
sonar and found that whales responded strongly at low received levels 
(89-127 dB re 1[micro]Pa) by ceasing normal fluking and echolocation, 
swimming rapidly away, and extending both dive duration and subsequent 
non-foraging intervals when the sound source was 3.4-9.5 km away. 
Importantly, this study also showed that whales exposed to a similar 
range of received levels (78-106 dB re 1[micro]Pa) from distant sonar 
exercises (118 km away) did not elicit such responses, suggesting that 
context may moderate reactions. Thus, distance from the source is an 
important variable in influencing the type and degree of behavioral 
response and this variable is independent of the effect of received 
levels (e.g., DeRuiter et al., 2013; Dunlop et al., 2017a; Dunlop et 
al., 2017b; Falcone et al., 2017; Dunlop et al., 2018; Southall et al., 
2019).
    Ellison et al. (2012) outlined an approach to assessing the effects 
of sound on marine mammals that incorporates contextual-based factors. 
The authors recommend considering not just the received level of sound 
but also the activity the animal is engaged in at the time the sound is 
received, the nature and novelty of the sound (i.e., is this a new 
sound from the animal's perspective), and the distance between the 
sound source and the animal. They submit that this ``exposure 
context,'' as described, greatly influences the type of behavioral 
response exhibited by the animal. Forney et al. (2017) also point out 
that an apparent lack of response (e.g., no displacement or avoidance 
of a sound source) may not necessarily mean there is no cost to the 
individual or population, as some resources or habitats may be of such 
high value that animals may choose to stay, even when experiencing 
stress or hearing loss. Forney et al. (2017) recommend considering both 
the costs of remaining in an area of noise exposure such as TTS, PTS, 
or masking, which could lead to an increased risk of predation or other 
threats or a decreased capability to forage, and the costs of 
displacement, including potential increased risk of vessel strike, 
increased risks of predation or competition for resources, or decreased 
habitat suitable for foraging, resting, or socializing. This sort of 
contextual information is challenging to predict with accuracy for 
ongoing activities that occur over large spatial and temporal expanses. 
However, distance is one contextual factor for which data exist to 
quantitatively inform a take estimate, and the method for predicting 
Level B harassment in this rule does consider distance to the source. 
Other factors are often considered qualitatively in the analysis of the 
likely consequences of sound exposure where supporting information is 
available.
    Behavioral change, such as disturbance manifesting in lost foraging 
time, in response to anthropogenic activities is often assumed to 
indicate a biologically significant effect on a population of concern. 
However, individuals may be able to compensate for some types and 
degrees of shifts in behavior, preserving their health and thus their 
vital rates and population dynamics. For example, New et al., 2013 
developed a model simulating the complex social, spatial, behavioral 
and motivational interactions of coastal bottlenose dolphins in the 
Moray Firth, Scotland, to assess the biological significance of 
increased rate of behavioral disruptions caused by vessel traffic. 
Despite a modeled scenario in which vessel traffic increased from 70 to 
470 vessels a year (a sixfold increase in vessel traffic) in response 
to the construction of a proposed offshore renewables' facility, the 
dolphins' behavioral time budget, spatial distribution, motivations and 
social structure remained unchanged.

[[Page 9018]]

Similarly, two bottlenose dolphin populations in Australia were also 
modeled over 5 years against a number of disturbances, (Reed et al., 
2020) and results indicate that habitat/noise disturbance had little 
overall impact on population abundances in either location, even in the 
most extreme impact scenarios modeled.
    Friedlaender et al. (2016) provided the first integration of direct 
measures of prey distribution and density variables incorporated into 
across-individual analyses of behavior responses of blue whales to 
sonar and demonstrated a fivefold increase in the ability to quantify 
variability in blue whale diving behavior. These results illustrate 
that responses evaluated without such measurements for foraging animals 
may be misleading, which again illustrates the context-dependent nature 
of the probability of response.
    The following subsections provide examples of behavioral responses 
that give an idea of the variability in behavioral responses that would 
be expected given the differential sensitivities of marine mammal 
species to sound, contextual factors, and the wide range of potential 
acoustic sources to which a marine mammal may be exposed. Behavioral 
responses that could occur for a given sound exposure should be 
determined from the literature that is available for each species, or 
extrapolated from closely related species when no information exists, 
along with contextual factors.

Avoidance and Displacement

    Avoidance is the displacement of an individual from an area or 
migration path as a result of the presence of a sound or other 
stressors and is one of the most obvious manifestations of disturbance 
in marine mammals (Richardson et al., 1995). For example, gray whales 
or humpback whales are known to change direction--deflecting from 
customary migratory paths--in order to avoid noise from airgun surveys 
(Malme et al., 1984; Dunlop et al., 2018). Avoidance is qualitatively 
different from the flight response but also differs in the magnitude of 
the response (i.e., directed movement, rate of travel, etc.). Avoidance 
may be short-term with animals returning to the area once the noise has 
ceased (e.g., Bowles et al., 1994; Goold, 1996; Stone et al., 2000; 
Morton and Symonds, 2002; Gailey et al., 2007; D[auml]hne et al., 2013; 
Russel et al., 2016; Malme et al., 1984). Longer-term displacement is 
possible, however, which may lead to changes in abundance or 
distribution patterns of the affected species in the affected region if 
habituation to the presence of the sound does not occur (e.g., 
Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 2006; 
Forney et al., 2017). Avoidance of marine mammals during the 
construction of offshore wind facilities (specifically, impact pile 
driving) has been documented in the literature with some significant 
variation in the temporal and spatial degree of avoidance and with most 
studies focused on harbor porpoises as one of the most common marine 
mammals in European waters (e.g., Tougaard et al., 2009; D[auml]hne et 
al., 2013; Thompson et al., 2013; Russell et al., 2016; Brandt et al., 
2018).
    Available information on impacts to marine mammals from pile 
driving associated with offshore wind is limited to information on 
harbor porpoises and seals, as the vast majority of this research has 
occurred at European offshore wind projects where large whales and 
other odontocete species are uncommon. Harbor porpoises and harbor 
seals are considered to be behaviorally sensitive species (e.g., 
Southall et al., 2007) and the effects of wind farm construction in 
Europe on these species has been well documented. These species have 
received particular attention in European waters due to their abundance 
in the North Sea (Hammond et al., 2002; Nachtsheim et al., 2021). A 
summary of the literature on documented effects of wind farm 
construction on harbor porpoise and harbor seals is described below.
    Brandt et al. (2016) summarized the effects of the construction of 
eight offshore wind projects within the German North Sea (i.e., Alpha 
Ventus, BARD Offshore I, Borkum West II, DanTysk, Global Tech I, 
Meerwind S[uuml]d/Ost, Nordsee Ost, and Riffgat) between 2009 and 2013 
on harbor porpoises, combining PAM data from 2010-2013 and aerial 
surveys from 2009-2013 with data on noise levels associated with pile 
driving. Results of the analysis revealed significant declines in 
porpoise detections during pile driving when compared to 25-48 hours 
before pile driving began, with the magnitude of decline during pile 
driving clearly decreasing with increasing distances to the 
construction site. During the majority of projects, significant 
declines in detections (by at least 20 percent) were found within at 
least 5-10 km of the pile driving site, with declines at up to 20-30 km 
of the pile driving site documented in some cases. Similar results 
demonstrating the long-distance displacement of harbor porpoises (18-25 
km) and harbor seals (up to 40 km) during impact pile driving have also 
been observed during the construction at multiple other European wind 
farms (Haleters et al., 2015; Lucke et al., 2012; D[auml]hne et al., 
2013; Tougaard et al., 2009; Bailey et al., 2010.)
    While harbor porpoises and seals tend to move several kilometers 
away from wind farm construction activities, the duration of 
displacement has been documented to be relatively temporary. In two 
studies at Horns Rev II using impact pile driving, harbor porpoise 
returned within 1-2 days following cessation of pile driving (Tougaard 
et al., 2009, Brandt et al., 2011). Similar recovery periods have been 
noted for harbor seals off England during the construction of four wind 
farms (Carroll et al., 2010; Hamre et al., 2011; Hastie et al., 2015; 
Russell et al., 2016; Brasseur et al., 2010). In some cases, an 
increase in harbor porpoise activity has been documented inside wind 
farm areas following construction (e.g., Lindeboom et al., 2011). Other 
studies have noted longer term impacts after impact pile driving. Near 
Dogger Bank in Germany, harbor porpoises continued to avoid the area 
for over 2 years after construction began (Gilles et al. 2009). 
Approximately 10 years after construction of the Nysted wind farm, 
harbor porpoise abundance had not recovered to the original levels 
previously seen, although the echolocation activity was noted to have 
been increasing when compared to the previous monitoring period 
(Teilmann and Carstensen, 2012). However, overall, there are no 
indications for a population decline of harbor porpoises in European 
waters (e.g., Brandt et al., 2016). Notably, where significant 
differences in displacement and return rates have been identified for 
these species, the occurrence of secondary project-specific influences 
such as use of mitigation measures (e.g., bubble curtains, acoustic 
deterrent devices (ADDs)) or the manner in which species use the 
habitat in the project area are likely the driving factors of this 
variation.
    NMFS notes the aforementioned studies from Europe involve 
installing much smaller piles than Sunrise Wind proposes to install. 
Therefore, we anticipate noise levels from impact pile driving to be 
louder. For this reason, we anticipate that the greater distances of 
displacement observed in harbor porpoise and harbor seals documented in 
Europe are likely to occur off New York. However, we do not anticipate 
any greater severity of response due to harbor porpoise and harbor seal 
habitat use off New York or population level consequences similar to 
European findings. In many cases, harbor porpoises and harbor seals are 
resident

[[Page 9019]]

to the areas where European wind farms have been constructed. However, 
off New York, harbor porpoises are transient (with higher abundances in 
winter when impact pile driving would not occur) and a very small 
percentage of the large harbor seal population are only seasonally 
present with no rookeries established. In summary, we anticipate that 
harbor porpoise and harbor seals will likely respond to pile driving by 
moving several kilometers away from the source but return to typical 
habitat use patterns when pile driving ceases. As previously noted, the 
literature on marine mammal responses to offshore wind farms is limited 
to species which are known to be more behaviorally sensitive to 
auditory stimuli than the other species that occur in the project area. 
Therefore, the documented behavioral responses of harbor porpoises and 
harbor seals to pile driving in Europe should be considered as a worst-
case scenario in terms of the potential responses among all marine 
mammals to offshore pile driving, and these responses cannot reliably 
predict the responses that will occur in other marine mammal species.
    Some avoidance behavior of other marine mammal species has been 
documented to be dependent on distance from the source in response to 
playbacks. As described above, DeRuiter et al. (2013) noted that 
distance from a sound source may moderate marine mammal reactions in 
their study of Cuvier's beaked whales (an acoustically sensitive 
species), which showed the whales swimming rapidly and silently away 
when a sonar signal was 3.4-9.5 km away while showing no such reaction 
to the same signal when the signal was 118 km away even though the 
received levels were similar. Tyack et al. (1983) conducted playback 
studies of Surveillance Towed Array Sensor System (SURTASS) low 
frequency active (LFA) sonar in a gray whale migratory corridor off 
California. Similar to North Atlantic right whales, gray whales migrate 
close to shore (approximately +2 kms) and are low frequency hearing 
specialists. The LFA sonar source was placed within the gray whale 
migratory corridor (approximately 2 km offshore) and offshore of most, 
but not all, migrating whales (approximately 4 km offshore). These 
locations influenced received levels and distance to the source. For 
the inshore playbacks, not unexpectedly, the louder the source level of 
the playback (i.e., the louder the received level), whale avoided the 
source at greater distances. Specifically, when the source level was 
170 dB rms and 178 dB rms, whales avoided the inshore source at ranges 
of several hundred meters, similar to avoidance responses reported by 
Malme et al. (1983, 1984). Whales exposed to source levels of 185 dB 
rms demonstrated avoidance levels at ranges of +1 km. Responses to the 
offshore source broadcasting at source levels of 185 and 200 dB, 
avoidance responses were greatly reduced. While there was observed 
deflection from course, in no case did a whale abandon its migratory 
behavior.
    The signal context of the noise exposure has been shown to play an 
important role in avoidance responses. In the 2007-2008 Bahamas study, 
playback sounds of a potential predator--a killer whale--resulted in a 
similar but more pronounced reaction in beaked whales (an acoustically 
sensitive species), which included longer inter-dive intervals and a 
sustained straight-line departure of more than 20 km from the area 
(Boyd et al., 2008; Southall et al., 2009; Tyack et al., 2011). Sunrise 
Wind does not anticipate, and NMFS is not proposing to authorize, take 
of beaked whales and, moreover, the sounds produced by Sunrise Wind do 
not have signal characteristics similar to predators. Therefore, we 
would not expect such extreme reactions to occur. Southall et al. 2011 
found that blue whales had a different response to sonar exposure 
depending on behavioral state, more pronounced when deep feeding/travel 
modes than when engaged in surface feeding.
    One consequence of behavioral avoidance results in the altered 
energetic expenditure of marine mammals because energy is required to 
move and avoid surface vessels or the sound field associated with 
active sonar (Frid and Dill, 2002). Most animals can avoid that 
energetic cost by swimming away at slow speeds or speeds that minimize 
the cost of transport (Miksis-Olds, 2006), as has been demonstrated in 
Florida manatees (Miksis-Olds, 2006).
    Those energetic costs increase, however, when animals shift from a 
resting state, which is designed to conserve an animal's energy, to an 
active state that consumes energy the animal would have conserved had 
it not been disturbed. Marine mammals that have been disturbed by 
anthropogenic noise and vessel approaches are commonly reported to 
shift from resting to active behavioral states, which would imply that 
they incur an energy cost.
    Forney et al. (2017) detailed the potential effects of noise on 
marine mammal populations with high site fidelity, including 
displacement and auditory masking, noting that a lack of observed 
response does not imply absence of fitness costs and that apparent 
tolerance of disturbance may have population-level impacts that are 
less obvious and difficult to document. Avoidance of overlap between 
disturbing noise and areas and/or times of particular importance for 
sensitive species may be critical to avoiding population-level impacts 
because (particularly for animals with high site fidelity) there may be 
a strong motivation to remain in the area despite negative impacts. 
Forney et al. (2017) stated that, for these animals, remaining in a 
disturbed area may reflect a lack of alternatives rather than a lack of 
effects.
Flight Response
    A flight response is a dramatic change in normal movement to a 
directed and rapid movement away from the perceived location of a sound 
source. The flight response differs from other avoidance responses in 
the intensity of the response (e.g., directed movement, rate of 
travel). Relatively little information on flight responses of marine 
mammals to anthropogenic signals exist, although observations of flight 
responses to the presence of predators have occurred (Connor and 
Heithaus, 1996; Frid and Dill, 2002). The result of a flight response 
could range from brief, temporary exertion and displacement from the 
area where the signal provokes flight to, in extreme cases, beaked 
whale strandings (Cox et al., 2006; D'Amico et al., 2009). However, it 
should be noted that response to a perceived predator does not 
necessarily invoke flight (Ford and Reeves, 2008), and whether 
individuals are solitary or in groups may influence the response. 
Flight responses of marine mammals have been documented in response to 
mobile high intensity active sonar (e.g., Tyack et al., 2011; DeRuiter 
et al., 2013; Wensveen et al., 2019), and more severe responses have 
been documented when sources are moving towards an animal or when they 
are surprised by unpredictable exposures (Watkins 1986; Falcone et al. 
2017). Generally speaking, however, marine mammals would be expected to 
be less likely to respond with a flight response to either stationery 
pile driving (which they can sense is stationery and predictable) or 
significantly lower-level HRG surveys unless they are within the area 
ensonified above behavioral harassment thresholds at the moment the 
source is turned on (Watkins, 1986; Falcone et al., 2017). A flight 
response may also be possible in response to UXO/MEC detonation; 
however, given a detonation is instantaneous, only one detonation would 
occur on a given day,

[[Page 9020]]

only 3 detonations may occur over 5 years, and the proposed mitigation 
and monitoring would result in any animals being far from the 
detonation (i.e., the clearance zone extends 10 km from the UXO/MEC 
location), any flight response would be spatially and temporally 
limited.
Alteration of Diving and Foraging
    Changes in dive behavior in response to noise exposure can vary 
widely. They may consist of increased or decreased dive times and 
surface intervals as well as changes in the rates of ascent and descent 
during a dive (e.g., Frankel and Clark, 2000; Costa et al., 2003; Ng 
and Leung, 2003; Nowacek et al., 2004; Goldbogen et al., 2013a, 2013b). 
Variations in dive behavior may reflect interruptions in biologically 
significant activities (e.g., foraging) or they may be of little 
biological significance. Variations in dive behavior may also expose an 
animal to potentially harmful conditions (e.g., increasing the chance 
of ship-strike) or may serve as an avoidance response that enhances 
survivorship. The impact of a variation in diving resulting from an 
acoustic exposure depends on what the animal is doing at the time of 
the exposure and the type and magnitude of the response.
    Nowacek et al. (2004) reported disruptions of dive behaviors in 
foraging North Atlantic right whales when exposed to an alerting 
stimulus, an action, they noted, that could lead to an increased 
likelihood of ship strike. The alerting stimulus was in the form of an 
18 minute exposure that included three 2-minute signals played three 
times sequentially. This stimulus was designed with the purpose of 
providing signals distinct to background noise that serve as 
localization cues. However, the whales did not respond to playbacks of 
either North Atlantic right whale social sounds or vessel noise, 
highlighting the importance of the sound characteristics in producing a 
behavioral reaction. All signals were relatively brief in duration, 
similar to the proposed Sunrise construction and HRG activities. 
Although source levels for the proposed pile driving activities may 
exceed the received level of the alerting stimulus described by Nowacek 
et al. (2004), proposed mitigation strategies (further described in the 
Proposed Mitigation section) will reduce the severity of any response 
to proposed pile driving activities. Indo-Pacific humpback dolphins 
have been observed to dive for longer periods of time in areas where 
vessels were present and/or approaching (Ng and Leung, 2003). In both 
of these studies, the influence of the sound exposure cannot be 
decoupled from the physical presence of a surface vessel, thus 
complicating interpretations of the relative contribution of each 
stimulus to the response. Indeed, the presence of surface vessels, 
their approach, and speed of approach seemed to be significant factors 
in the response of the Indo-Pacific humpback dolphins (Ng and Leung, 
2003). Low frequency signals of the Acoustic Thermometry of Ocean 
Climate (ATOC) sound source were not found to affect dive times of 
humpback whales in Hawaiian waters (Frankel and Clark, 2000) or to 
overtly affect elephant seal dives (Costa et al., 2003). They did, 
however, produce subtle effects that varied in direction and degree 
among the individual seals, illustrating the equivocal nature of 
behavioral effects and consequent difficulty in defining and predicting 
them.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation as well as 
differences in species sensitivity are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al.; 2004; Madsen et al., 2006a; Yazvenko et al., 
2007; Southall et al., 2019b). An understanding of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal can facilitate the assessment of whether foraging 
disruptions are likely to incur fitness consequences (Goldbogen et al., 
2013; Farmer et al., 2018; Pirotta et al., 2018; Southall et al., 2019; 
Pirotta et al., 2021).
    Impacts on marine mammal foraging rates from noise exposure have 
been documented, though there is little data regarding the impacts of 
offshore turbine construction specifically. Several broader examples 
follow, and it is reasonable to expect that exposure to noise produced 
during the 5-years the proposed rule would be effective could have 
similar impacts.
    Visual tracking, passive acoustic monitoring, and movement 
recording tags were used to quantify sperm whale behavior prior to, 
during, and following exposure to air gun arrays at received levels in 
the range 140-160 dB at distances of 7-13 km, following a phase-in of 
sound intensity and full array exposures at 1-13 km (Madsen et al., 
2006a; Miller et al., 2009). Sperm whales did not exhibit horizontal 
avoidance behavior at the surface. However, foraging behavior may have 
been affected. The sperm whales exhibited 19 percent less vocal (buzz) 
rate during full exposure relative to post exposure, and the whale that 
was approached most closely had an extended resting period and did not 
resume foraging until the air guns had ceased firing. The remaining 
whales continued to execute foraging dives throughout exposure; 
however, swimming movements during foraging dives were six percent 
lower during exposure than control periods (Miller et al., 2009). 
Miller et al. (2009) noted that more data are required to understand 
whether the differences were due to exposure or natural variation in 
sperm whale behavior.
    Balaenopterid whales exposed to moderate low-frequency signals 
similar to the ATOC sound source demonstrated no variation in foraging 
activity (Croll et al., 2001) whereas five out of six North Atlantic 
right whales exposed to an acoustic alarm interrupted their foraging 
dives (Nowacek et al., 2004). Although the received SPLs were similar 
in the latter two studies, the frequency, duration, and temporal 
pattern of signal presentation were different. These factors, as well 
as differences in species sensitivity, are likely contributing factors 
to the differential response. The source levels of the proposed 
construction and HRG activities exceed the source levels of the signals 
described by Nowacek et al. (2004) and Croll et al. (2001), yet noise 
generated by Sunrise Wind's activities would overlap in frequency with 
the described signals. Blue whales exposed to mid-frequency sonar in 
the Southern California Bight were less likely to produce low frequency 
calls usually associated with feeding behavior (Melc[oacute]n et al., 
2012). However, Melc[oacute]n et al. (2012) were unable to determine if 
suppression of low frequency calls reflected a change in their feeding 
performance or abandonment of foraging behavior and indicated that 
implications of the documented responses are unknown. Further, it is 
not known whether the lower rates of calling actually indicated a 
reduction in feeding behavior or social contact since the study used 
data from remotely deployed, passive acoustic monitoring buoys. Results 
from the 2010-2011 field season of a behavioral response study in 
Southern California waters indicated that, in some cases and at low 
received

[[Page 9021]]

levels, tagged blue whales responded to mid-frequency sonar but that 
those responses were mild and there was a quick return to their 
baseline activity (Southall et al., 2011; Southall et al., 2012b, 
Southall et al., 2019b).
    Information on or estimates of the energetic requirements of the 
individuals and the relationship between prey availability, foraging 
effort and success, and the life history stage of the animal will help 
better inform a determination of whether foraging disruptions incur 
fitness consequences. Foraging strategies may impact foraging 
efficiency, such as by reducing foraging effort and increasing success 
in prey detection and capture, in turn promoting fitness and allowing 
individuals to better compensate for foraging disruptions. Surface 
feeding blue whales did not show a change in behavior in response to 
mid-frequency simulated and real sonar sources with received levels 
between 90 and 179 dB re 1 [micro]Pa, but deep feeding and non-feeding 
whales showed temporary reactions including cessation of feeding, 
reduced initiation of deep foraging dives, generalized avoidance 
responses, and changes to dive behavior (DeRuiter et al., 2017; 
Goldbogen et al. (2013b); Sivle et al., 2015). Goldbogen et al. (2013b) 
indicate that disruption of feeding and displacement could impact 
individual fitness and health. However, for this to be true, we would 
have to assume that an individual whale could not compensate for this 
lost feeding opportunity by either immediately feeding at another 
location, by feeding shortly after cessation of acoustic exposure, or 
by feeding at a later time. There is no indication this is the case, 
particularly since unconsumed prey would likely still be available in 
the environment in most cases following the cessation of acoustic 
exposure.
    Similarly, while the rates of foraging lunges decrease in humpback 
whales due to sonar exposure, there was variability in the response 
across individuals with one animal ceasing to forage completely and 
another animal starting to forage during the exposure (Sivle et al., 
2016). In addition, almost half of the animals that demonstrated 
avoidance were foraging before the exposure but the others were not; 
the animals that avoided while not feeding responded at a slightly 
lower received level and greater distance than those that were feeding 
(Wensveen et al., 2017). These findings indicate the behavioral state 
of the animal and foraging strategies play a role in the type and 
severity of a behavioral response. For example, when the prey field was 
mapped and used as a covariate in examining how behavioral state of 
blue whales is influenced by mid-frequency sound, the response in blue 
whale deep-feeding behavior was even more apparent, reinforcing the 
need for contextual variables to be included when assessing behavioral 
responses (Friedlaender et al., 2016).
Breathing
    Respiration naturally varies with different behaviors and 
variations in respiration rate as a function of acoustic exposure can 
be expected to co-occur with other behavioral reactions, such as a 
flight response or an alteration in diving. However, respiration rates 
in and of themselves may be representative of annoyance or an acute 
stress response. Mean exhalation rates of gray whales at rest and while 
diving were found to be unaffected by seismic surveys conducted 
adjacent to the whale feeding grounds (Gailey et al., 2007). Studies 
with captive harbor porpoises show increased respiration rates upon 
introduction of acoustic alarms (Kastelein et al., 2001; Kastelein et 
al., 2006a) and emissions for underwater data transmission (Kastelein 
et al., 2005). However, exposure of the same acoustic alarm to a 
striped dolphin under the same conditions did not elicit a response 
(Kastelein et al., 2006a), again highlighting the importance in 
understanding species differences in the tolerance of underwater noise 
when determining the potential for impacts resulting from anthropogenic 
sound exposure.
Vocalizations (Also see the Auditory Masking Section)
    Marine mammals vocalize for different purposes and across multiple 
modes, such as whistling, production of echolocation clicks, calling, 
and singing. Changes in vocalization behavior in response to 
anthropogenic noise can occur for any of these modes and may result 
directly from increased vigilance (also see the Potential Effects of 
Behavioral Disturbance on Marine Mammal Fitness section) or a startle 
response, or from a need to compete with an increase in background 
noise (see Erbe et al., 2016 review on communication masking), the 
latter of which is described more in the Auditory Masking section 
below.
    For example, in the presence of potentially masking signals, 
humpback whales and killer whales have been observed to increase the 
length of their songs (Miller et al., 2000; Fristrup et al., 2003; 
Foote et al., 2004) and blue whales increased song production (Di Iorio 
and Clark, 2009) while North Atlantic right whales have been observed 
to shift the frequency content of their calls upward while reducing the 
rate of calling in areas of increased anthropogenic noise (Parks et 
al., 2007). In some cases, animals may cease or reduce sound production 
during production of aversive signals (Bowles et al., 1994; Thode et 
al., 2020; Cerchio et al. (2014); McDonald et al. (1995)). Blackwell et 
al. (2015) showed that whales increased calling rates as soon as air 
gun signals were detectable before ultimately decreasing calling rates 
at higher received levels.
Orientation
    A shift in an animal's resting state or an attentional change via 
an orienting response represent behaviors that would be considered mild 
disruptions if occurring alone. As previously mentioned, the responses 
may co-occur with other behaviors; for instance, an animal may 
initially orient toward a sound source and then move away from it. 
Thus, any orienting response should be considered in context of other 
reactions that may occur.
Habituation and Sensitization
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. It is important to note that 
habituation is appropriately considered as a ``progressive reduction in 
response to stimuli that are perceived as neither aversive nor 
beneficial,'' rather than as, more generally, moderation in response to 
human disturbance having a neutral or positive outcome (Bejder et al., 
2009). The opposite process is sensitization, when an unpleasant 
experience leads to subsequent responses, often in the form of 
avoidance, at a lower level of exposure. Both habituation and 
sensitization require an ongoing learning process. As noted, behavioral 
state may affect the type of response. For example, animals that are 
resting may show greater behavioral change in response to disturbing 
sound levels than animals that are highly motivated to remain in an 
area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 
2003; Southall et al., 2019b). Controlled experiments with captive 
marine mammals have shown pronounced behavioral reactions, including 
avoidance of loud sound sources (e.g., Ridgway et al., 1997; Finneran 
et al., 2003; Houser et al. (2013a, b); Kastelein et al. (2018). 
Observed responses of wild marine mammals to loud impulsive sound

[[Page 9022]]

sources (typically airguns or acoustic harassment devices) have been 
varied but often consist of avoidance behavior or other behavioral 
changes suggesting discomfort (Morton and Symonds, 2002; see also 
Richardson et al., 1995; Nowacek et al., 2007; Tougaard et al., 2009; 
Brandt et al., 2011, Brandt et al., 2012, D[auml]hne et al., 2013; 
Brandt et al., 2014; Russell et al., 2016; Brandt et al., 2018). 
However, many delphinids approach low-frequency airgun source vessels 
with no apparent discomfort or obvious behavioral change (e.g., 
Barkaszi et al., 2012), indicating the importance of frequency output 
in relation to the species' hearing sensitivity.
Stress Response
    An animal's perception of a threat may be sufficient to trigger 
stress responses consisting of some combination of behavioral 
responses, autonomic nervous system responses, neuroendocrine 
responses, or immune responses (e.g., Seyle, 1950; Moberg, 2000). In 
many cases, an animal's first and sometimes most economical (in terms 
of energetic costs) response is behavioral avoidance of the potential 
stressor. Autonomic nervous system responses to stress typically 
involve changes in heart rate, blood pressure, and gastrointestinal 
activity. These responses have a relatively short duration and may or 
may not have a significant long-term effect on an animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 
2000). Increases in the circulation of glucocorticoids are also equated 
with stress (Romano et al., 2004).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficient to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses are well studied through 
controlled experiments and for both laboratory and free-ranging animals 
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; 
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to 
exposure to anthropogenic sounds or other stressors and their effects 
on marine mammals have also been reviewed (Fair and Becker, 2000; 
Romano et al., 2002b) and, more rarely, studied in wild populations 
(e.g., Lusseau and Bejder, 2007; Romano et al., 2002a; Rolland et al., 
2012). For example, Rolland et al. (2012) found that noise reduction 
from reduced ship traffic in the Bay of Fundy was associated with 
decreased stress in North Atlantic right whales. Lusseau and Bejder 
(2007) present data from three long-term studies illustrating the 
connections between disturbance from whale-watching boats and 
population-level effects in cetaceans. In Shark Bay, Australia, the 
abundance of bottlenose dolphins was compared within adjacent control 
and tourism sites over three consecutive 4.5-year periods of increasing 
tourism levels. Between the second and third time periods, in which 
tourism doubled, dolphin abundance decreased by 15 percent in the 
tourism area and did not change significantly in the control area. In 
Fiordland, New Zealand, two populations (Milford and Doubtful Sounds) 
of bottlenose dolphins with tourism levels that differed by a factor of 
seven were observed and significant increases in traveling time and 
decreases in resting time were documented for both. Consistent short-
term avoidance strategies were observed in response to tour boats until 
a threshold of disturbance was reached (average 68 minutes between 
interactions), after which the response switched to a longer-term 
habitat displacement strategy. For one population, tourism only 
occurred in a part of the home range. However, tourism occurred 
throughout the home range of the Doubtful Sound population and once 
boat traffic increased beyond the 68-minute threshold (resulting in 
abandonment of their home range/preferred habitat), reproductive 
success drastically decreased (increased stillbirths) and abundance 
decreased significantly (from 67 to 56 individuals in a short period).
    These and other studies lead to a reasonable expectation that some 
marine mammals will experience physiological stress responses upon 
exposure to acoustic stressors and that it is possible that some of 
these would be classified as ``distress.'' In addition, any animal 
experiencing TTS would likely also experience stress responses (NRC, 
2003, 2017).
Auditory Masking
    Sound can disrupt behavior through masking or interfering with an 
animal's ability to detect, recognize, or discriminate between acoustic 
signals of interest (e.g., those used for intraspecific communication 
and social interactions, prey detection, predator avoidance, or 
navigation) (Richardson et al., 1995; Erbe and Farmer, 2000; Tyack, 
2000; Erbe et al., 2016). Masking occurs when the receipt of a sound is 
interfered with by another coincident sound at similar frequencies and 
at similar or higher intensity and may occur whether the sound is 
natural (e.g., snapping shrimp, wind, waves, precipitation) or 
anthropogenic (e.g., shipping, sonar, seismic exploration) in origin. 
The ability of a noise source to mask biologically important sounds 
depends on the characteristics of both the noise source and the signal 
of interest (e.g., signal-to-noise ratio, temporal variability, 
direction) in relation to each other, an animal's hearing abilities 
(e.g., sensitivity, frequency range, critical ratios, frequency 
discrimination, directional discrimination, age, or TTS hearing loss), 
and existing ambient noise and propagation conditions. Masking these 
acoustic signals can disturb the behavior of individual animals, groups 
of animals, or entire populations. Masking can lead to behavioral 
changes, including vocal changes (e.g., Lombard effect, increasing 
amplitude, or changing frequency), cessation of foraging or lost 
foraging opportunities, and leaving an area, to both signalers and 
receivers in an attempt to compensate for noise levels (Erbe et al., 
2016) or because sounds that would typically have triggered a behavior 
were not detected. In humans, significant masking of tonal signals 
occurs as a result of exposure to noise in a narrow band of similar 
frequencies. As the sound level increases, though, the detection of 
frequencies above those of the masking stimulus decreases also. This 
principle is expected to apply to marine mammals as well because of 
common biomechanical cochlear properties across taxa.
    Therefore, when the coincident (masking) sound is man-made, it may 
be considered Level B harassment when disrupting or altering critical 
behaviors. It is important to distinguish TTS and

[[Page 9023]]

PTS, which persist after the sound exposure, from masking, which only 
occurs during the sound exposure. Because masking (without resulting in 
threshold shift) is not associated with abnormal physiological 
function, it is not considered a physiological effect but rather, a 
potential behavioral effect.
    The frequency range of the potentially masking sound is important 
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation 
sounds produced by odontocetes but are more likely to affect detection 
of mysticete communication calls and other potentially important 
natural sounds such as those produced by surf and some prey species. 
The masking of communication signals by anthropogenic noise may be 
considered as a reduction in the communication space of animals (e.g., 
Clark et al., 2009; Matthews et al., 2016) and may result in energetic 
or other costs as animals change their vocalization behavior (e.g., 
Miller et al., 2000; Foote et al., 2004; Parks et al., 2007; Di Iorio 
and Clark, 2009; Holt et al., 2009). Masking can be reduced in 
situations where the signal and noise come from different directions 
(Richardson et al., 1995), through amplitude modulation of the signal, 
or through other compensatory behaviors (Houser and Moore, 2014). 
Masking can be tested directly in captive species (e.g., Erbe, 2008), 
but in wild populations, it must be either modeled or inferred from 
evidence of masking compensation. There are few studies addressing 
real-world masking sounds likely to be experienced by marine mammals in 
the wild (e.g., Branstetter et al., 2013; Cholewiak et al., 2018).
    High-frequency sounds may mask the echolocation calls of toothed 
whales. Human data indicate low-frequency sound can mask high-frequency 
sounds (i.e., upward masking). Studies on captive odontocetes by Au et 
al. (1974, 1985, 1993) indicate that some species may use various 
processes to reduce masking effects (e.g., adjustments in echolocation 
call intensity or frequency as a function of background noise 
conditions). There is also evidence that the directional hearing 
abilities of odontocetes are useful in reducing masking at the high-
frequencies these cetaceans use to echolocate but not at the low-to-
moderate frequencies they use to communicate (Zaitseva et al., 1980). A 
study by Nachtigall and Supin (2008) showed that false killer whales 
adjust their hearing to compensate for ambient sounds and the intensity 
of returning echolocation signals.
    Impacts on signal detection, measured by masked detection 
thresholds, are not the only important factors to address when 
considering the potential effects of masking. As marine mammals use 
sound to recognize conspecifics, prey, predators, or other biologically 
significant sources (Branstetter et al., 2016), it is also important to 
understand the impacts of masked recognition thresholds (often called 
``informational masking''). Branstetter et al. (2016) measured masked 
recognition thresholds for whistle-like sounds of bottlenose dolphins 
and observed that they are approximately 4 dB above detection 
thresholds (energetic masking) for the same signals. Reduced ability to 
recognize a conspecific call or the acoustic signature of a predator 
could have severe negative impacts. Branstetter et al. (2016) observed 
that if ``quality communication'' is set at 90 percent recognition the 
output of communication space models (which are based on 50 percent 
detection) would likely result in a significant decrease in 
communication range.
    As marine mammals use sound to recognize predators (Allen et al., 
2014; Cummings and Thompson, 1971; Cur[eacute] et al., 2015; Fish and 
Vania, 1971), the presence of masking noise may also prevent marine 
mammals from responding to acoustic cues produced by their predators, 
particularly if it occurs in the same frequency band. For example, 
harbor seals that reside in the coastal waters off British Columbia are 
frequently targeted by mammal-eating killer whales. The seals 
acoustically discriminate between the calls of mammal-eating and fish-
eating killer whales (Deecke et al., 2002), a capability that should 
increase survivorship while reducing the energy required to attend to 
all killer whale calls. Similarly, sperm whales (Cur[eacute] et al., 
2016; Isojunno et al., 2016), long-finned pilot whales (Visser et al., 
2016), and humpback whales (Cur[eacute] et al., 2015) changed their 
behavior in response to killer whale vocalization playbacks; these 
findings indicate that some recognition of predator cues could be 
missed if the killer whale vocalizations were masked. The potential 
effects of masked predator acoustic cues depends on the duration of the 
masking noise and the likelihood of a marine mammal encountering a 
predator during the time that detection and recognition of predator 
cues are impeded.
    Redundancy and context can also facilitate detection of weak 
signals. These phenomena may help marine mammals detect weak sounds in 
the presence of natural or manmade noise. Most masking studies in 
marine mammals present the test signal and the masking noise from the 
same direction. The dominant background noise may be highly directional 
if it comes from a particular anthropogenic source such as a ship or 
industrial site. Directional hearing may significantly reduce the 
masking effects of these sounds by improving the effective signal-to-
noise ratio.
    Masking affects both senders and receivers of acoustic signals and, 
at higher levels and longer duration, can potentially have long-term 
chronic effects on marine mammals at the population level as well as at 
the individual level. Low-frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, with most of the increase 
from distant commercial shipping (Hildebrand, 2009; Cholewiak et al., 
2018). All anthropogenic sound sources, but especially chronic and 
lower-frequency signals (e.g., from commercial vessel traffic), 
contribute to elevated ambient sound levels, thus intensifying masking.
    In addition to making it more difficult for animals to perceive and 
recognize acoustic cues in their environment, anthropogenic sound 
presents separate challenges for animals that are vocalizing. When they 
vocalize, animals are aware of environmental conditions that affect the 
``active space'' (or communication space) of their vocalizations, which 
is the maximum area within which their vocalizations can be detected 
before it drops to the level of ambient noise (Brenowitz, 2004; Brumm 
et al., 2004; Lohr et al., 2003). Animals are also aware of 
environmental conditions that affect whether listeners can discriminate 
and recognize their vocalizations from other sounds, which is more 
important than simply detecting that a vocalization is occurring 
(Brenowitz, 1982; Brumm et al., 2004; Dooling, 2004; Marten and Marler, 
1977; Patricelli et al., 2006). Most species that vocalize have evolved 
with an ability to make adjustments to their vocalizations to increase 
the signal-to-noise ratio, active space, and recognizability/
distinguishability of their vocalizations in the face of temporary 
changes in background noise (Brumm et al., 2004; Patricelli et al., 
2006). Vocalizing animals can make adjustments to vocalization 
characteristics such as the frequency structure, amplitude, temporal 
structure, and temporal delivery (repetition rate), or ceasing to 
vocalize.
    Many animals will combine several of these strategies to compensate 
for high levels of background noise.

[[Page 9024]]

Anthropogenic sounds that reduce the signal-to-noise ratio of animal 
vocalizations, increase the masked auditory thresholds of animals' 
listening for such vocalizations, or reduce the active space of an 
animal's vocalizations impair communication between animals. Most 
animals that vocalize have evolved strategies to compensate for the 
effects of short-term or temporary increases in background or ambient 
noise on their songs or calls. Although the fitness consequences of 
these vocal adjustments are not directly known in all instances, like 
most other trade-offs animals must make, some of these strategies 
probably come at a cost (Patricelli et al., 2006; Noren et al., 2017; 
Noren et al., 2020). Shifting songs and calls to higher frequencies may 
also impose energetic costs (Lambrechts, 1996).
    Marine mammals are also known to make vocal changes in response to 
anthropogenic noise. In cetaceans, vocalization changes have been 
reported from exposure to anthropogenic noise sources such as sonar, 
vessel noise, and seismic surveying (see the following for examples: 
Gordon et al., 2003; Di Iorio and Clark, 2009; Hatch et al., 2012; Holt 
et al., 2009; Holt et al., 2011; Lesage et al., 1999; McDonald et al., 
2009; Parks et al., 2007, Risch et al., 2012, Rolland et al., 2012), as 
well as changes in the natural acoustic environment (Dunlop et al., 
2014). Vocal changes can be temporary or can be persistent. For 
example, model simulation suggests that the increase in starting 
frequency for the North Atlantic right whale upcall over the last 50 
years resulted in increased detection ranges between North Atlantic 
right whales. The frequency shift, coupled with an increase in call 
intensity by 20 dB, led to a call detectability range of less than 3 km 
to over 9 km (Tennessen and Parks, 2016). Holt et al. (2009) measured 
killer whale call source levels and background noise levels in the one 
to 40 kHz band and reported that the whales increased their call source 
levels by one dB SPL for every one dB SPL increase in background noise 
level. Similarly, another study on St. Lawrence River belugas reported 
a similar rate of increase in vocalization activity in response to 
passing vessels (Scheifele et al., 2005). Di Iorio and Clark (2009) 
showed that blue whale calling rates vary in association with seismic 
sparker survey activity with whales calling more on days with surveys 
than on days without surveys. They suggested that the whales called 
more during seismic survey periods as a way to compensate for the 
elevated noise conditions.
    In some cases, these vocal changes may have fitness consequences, 
such as an increase in metabolic rates and oxygen consumption, as 
observed in bottlenose dolphins when increasing their call amplitude 
(Holt et al., 2015). A switch from vocal communication to physical, 
surface-generated sounds, such as pectoral fin slapping or breaching, 
was observed for humpback whales in the presence of increasing natural 
background noise levels indicating that adaptations to masking may also 
move beyond vocal modifications (Dunlop et al., 2010).
    While these changes all represent possible tactics by the sound-
producing animal to reduce the impact of masking, the receiving animal 
can also reduce masking by using active listening strategies such as 
orienting to the sound source, moving to a quieter location, or 
reducing self-noise from hydrodynamic flow by remaining still. The 
temporal structure of noise (e.g., amplitude modulation) may also 
provide a considerable release from masking through comodulation 
masking release (a reduction of masking that occurs when broadband 
noise, with a frequency spectrum wider than an animal's auditory filter 
bandwidth at the frequency of interest, is amplitude modulated) 
(Branstetter and Finneran, 2008; Branstetter et al., 2013). Signal type 
(e.g., whistles, burst-pulse, sonar clicks) and spectral 
characteristics (e.g., frequency modulated with harmonics) may further 
influence masked detection thresholds (Branstetter et al., 2016; 
Cunningham et al., 2014).
    Masking is more likely to occur in the presence of broadband, 
relatively continuous noise sources such as vessels. Several studies 
have shown decreases in marine mammal communication space and changes 
in behavior as a result of the presence of vessel noise. For example, 
North Atlantic right whales were observed to shift the frequency 
content of their calls upward while reducing the rate of calling in 
areas of increased anthropogenic noise (Parks et al., 2007) as well as 
increasing the amplitude (intensity) of their calls (Parks, 2009; Parks 
et al., 2011). Clark et al. (2009) observed that North Atlantic right 
whales' communication space decreased by up to 84 percent in the 
presence of vessels. Cholewiak et al. (2018) also observed loss in 
communication space in Stellwagen National Marine Sanctuary for North 
Atlantic right whales, fin whales, and humpback whales with increased 
ambient noise and shipping noise. Although humpback whales off 
Australia did not change the frequency or duration of their 
vocalizations in the presence of ship noise, their source levels were 
lower than expected based on source level changes to wind noise, 
potentially indicating some signal masking (Dunlop, 2016). Multiple 
delphinid species have also been shown to increase the minimum or 
maximum frequencies of their whistles in the presence of anthropogenic 
noise and reduced communication space (for examples see: Holt et al., 
2009; Holt et al., 2011; Gervaise et al., 2012; Williams et al., 2013; 
Hermannsen et al., 2014; Papale et al., 2015; Liu et al., 2017). While 
masking impacts are not a concern from lower intensity, higher 
frequency HRG surveys, some degree of masking would be expected in the 
vicinity of turbine pile driving and concentrated support vessel 
operation. However, pile driving is an intermittent sound and would not 
be continuous throughout a day.

Potential Effects of Behavioral Disturbance on Marine Mammal Fitness

    The different ways that marine mammals respond to sound are 
sometimes indicators of the ultimate effect that exposure to a given 
stimulus will have on the well-being (survival, reproduction, etc.) of 
an animal. There is little quantitative marine mammal data relating the 
exposure of marine mammals from sound to effects on reproduction or 
survival, though data exists for terrestrial species to which we can 
draw comparisons for marine mammals. Several authors have reported that 
disturbance stimuli may cause animals to abandon nesting and foraging 
sites (Sutherland and Crockford, 1993); may cause animals to increase 
their activity levels and suffer premature deaths or reduced 
reproductive success when their energy expenditures exceed their energy 
budgets (Daan et al., 1996; Feare, 1976; Mullner et al., 2004); or may 
cause animals to experience higher predation rates when they adopt 
risk-prone foraging or migratory strategies (Frid and Dill, 2002). Each 
of these studies addressed the consequences of animals shifting from 
one behavioral state (e.g., resting or foraging) to another behavioral 
state (e.g., avoidance or escape behavior) because of human disturbance 
or disturbance stimuli.
    Attention is the cognitive process of selectively concentrating on 
one aspect of an animal's environment while ignoring other things 
(Posner, 1994). Because animals (including humans) have limited 
cognitive resources, there is a limit to how much sensory information 
they can process at any time. The phenomenon called

[[Page 9025]]

``attentional capture'' occurs when a stimulus (usually a stimulus that 
an animal is not concentrating on or attending to) ``captures'' an 
animal's attention. This shift in attention can occur consciously or 
subconsciously (for example, when an animal hears sounds that it 
associates with the approach of a predator) and the shift in attention 
can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has 
captured an animal's attention, the animal can respond by ignoring the 
stimulus, assuming a ``watch and wait'' posture, or treat the stimulus 
as a disturbance and respond accordingly, which includes scanning for 
the source of the stimulus or ``vigilance'' (Cowlishaw et al., 2004).
    Vigilance is an adaptive behavior that helps animals determine the 
presence or absence of predators, assess their distance from 
conspecifics, or to attend cues from prey (Bednekoff and Lima, 1998; 
Treves, 2000). Despite those benefits, however, vigilance has a cost of 
time; when animals focus their attention on specific environmental 
cues, they are not attending to other activities such as foraging or 
resting. These effects have generally not been demonstrated for marine 
mammals, but studies involving fish and terrestrial animals have shown 
that increased vigilance may substantially reduce feeding rates (Saino, 
1994; Beauchamp and Livoreil, 1997; Fritz et al., 2002; Purser and 
Radford, 2011). Animals will spend more time being vigilant, which may 
translate to less time foraging or resting, when disturbance stimuli 
approach them more directly, remain at closer distances, have a greater 
group size (e.g., multiple surface vessels), or when they co-occur with 
times that an animal perceives increased risk (e.g., when they are 
giving birth or accompanied by a calf).
    The primary mechanism by which increased vigilance and disturbance 
appear to affect the fitness of individual animals is by disrupting an 
animal's time budget and, as a result, reducing the time they might 
spend foraging and resting (which increases an animal's activity rate 
and energy demand while decreasing their caloric intake/energy). In a 
study of northern resident killer whales off Vancouver Island, exposure 
to boat traffic was shown to reduce foraging opportunities and increase 
traveling time (Holt et al., 2021). A simple bioenergetics model was 
applied to show that the reduced foraging opportunities equated to a 
decreased energy intake of 18 percent while the increased traveling 
incurred an increased energy output of 3-4 percent, which suggests that 
a management action based on avoiding interference with foraging might 
be particularly effective.
    On a related note, many animals perform vital functions, such as 
feeding, resting, traveling, and socializing, on a diel cycle (24-hr 
cycle). Behavioral reactions to noise exposure (such as disruption of 
critical life functions, displacement, or avoidance of important 
habitat) are more likely to be significant for fitness if they last 
more than one diel cycle or recur on subsequent days (Southall et al., 
2007). Consequently, a behavioral response lasting less than 1 day and 
not recurring on subsequent days is not considered particularly severe 
unless it could directly affect reproduction or survival (Southall et 
al., 2007). It is important to note the difference between behavioral 
reactions lasting or recurring over multiple days and anthropogenic 
activities lasting or recurring over multiple days. For example, just 
because certain activities last for multiple days does not necessarily 
mean that individual animals will be either exposed to those activity-
related stressors (i.e., sonar) for multiple days or further exposed in 
a manner that would result in sustained multi-day substantive 
behavioral responses. However, special attention is warranted where 
longer-duration activities overlay areas in which animals are known to 
congregate for longer durations for biologically important behaviors.
    Stone (2015a) reported data from at-sea observations during 1,196 
airgun surveys from 1994 to 2010. When large arrays of airguns 
(considered to be 500 in 3 or more) were firing, lateral displacement, 
more localized avoidance, or other changes in behavior were evident for 
most odontocetes. However, significant responses to large arrays were 
found only for the minke whale and fin whale. Behavioral responses 
observed included changes in swimming or surfacing behavior with 
indications that cetaceans remained near the water surface at these 
times. Cetaceans were recorded as feeding less often when large arrays 
were active. Behavioral observations of gray whales during an air gun 
survey monitored whale movements and respirations pre-, during-, and 
post-seismic survey (Gailey et al., 2016). Behavioral state and water 
depth were the best `natural' predictors of whale movements and 
respiration and after considering natural variation, none of the 
response variables were significantly associated with survey or vessel 
sounds.
    In order to understand how the effects of activities may or may not 
impact species and stocks of marine mammals, it is necessary to 
understand not only what the likely disturbances are going to be but 
how those disturbances may affect the reproductive success and 
survivorship of individuals and then how those impacts to individuals 
translate to population-level effects. Following on the earlier work of 
a committee of the U.S. National Research Council (NRC, 2005), New et 
al. (2014), in an effort termed the Potential Consequences of 
Disturbance (PCoD), outline an updated conceptual model of the 
relationships linking disturbance to changes in behavior and 
physiology, health, vital rates, and population dynamics. This 
framework is a four-step process progressing from changes in individual 
behavior and/or physiology, to changes in individual health, then vital 
rates, and finally to population-level effects. In this framework, 
behavioral and physiological changes can have direct (acute) effects on 
vital rates, such as when changes in habitat use or increased stress 
levels raise the probability of mother-calf separation or predation; 
indirect and long-term (chronic) effects on vital rates, such as when 
changes in time/energy budgets or increased disease susceptibility 
affect health, which then affects vital rates; or no effect to vital 
rates (New et al., 2014). In addition to outlining this general 
framework and compiling the relevant literature that supports it, the 
authors chose four example species for which extensive long-term 
monitoring data exist (southern elephant seals, North Atlantic right 
whales, Ziphiidae beaked whales, and bottlenose dolphins) and developed 
state-space energetic models that can be used to effectively forecast 
longer-term, population-level impacts from behavioral changes. While 
these are very specific models with very specific data requirements 
that cannot yet be applied broadly to project-specific risk assessments 
for the majority of species, they are a critical first step towards 
being able to quantify the likelihood of a population level effect. 
Since New et al. (2014), several publications have described models 
developed to examine the long-term effects of environmental or 
anthropogenic disturbance of foraging on various life stages of 
selected species (e.g., sperm whale, Farmer et al. (2018); California 
sea lion, McHuron et al. (2018); blue whale, Pirotta et al. (2018a); 
humpback whale, Dunlop et al. (2021)). These models continue to add to 
refinement of the approaches to the PCoD framework. Such models also 
help identify what data inputs require further investigation. Pirotta 
et al. (2018b) provides a review of the PCoD

[[Page 9026]]

framework with details on each step of the process and approaches to 
applying real data or simulations to achieve each step.
    Despite its simplicity, there are few complete PCoD models 
available for any marine mammal species due to a lack of data available 
to parameterize many of the steps. To date, no PCoD model has been 
fully parameterized with empirical data (Pirotta et al., 2018a) due to 
the fact they are data intensive and logistically challenging to 
complete. Therefore, most complete PCoD models include simulations, 
theoretical modeling, and expert opinion to move through the steps. For 
example, PCoD models have been developed to evaluate the effect of wind 
farm construction on the North Sea harbor porpoise populations (e.g., 
King et al., 2015; Nabe-Nielsen et al., 2018). These models include a 
mix of empirical data, expert elicitation (King et al., 2015) and 
simulations of animals' movements, energetics, and/or survival (New et 
al., 2014; Nabe-Nielsen et al., 2018). In another example, by 
integrating different sources of data (e.g., controlled exposure data, 
activity monitoring, telemetry tracking, and prey sampling) into a 
theoretical model to predict effects from sonar on a blue whale's daily 
energy intake, Pirotta et al. (2021) found that tagged blue whales' 
activity budgets, lunging rates, and ranging patterns caused 
variability in their predicted cost of disturbance.
    PCoD models may also be approached in different manners. Dunlop et 
al. (2021) modeled migrating humpback whale mother-calf pairs in 
response to seismic surveys using both a forwards and backwards 
approach. While a typical forwards approach can determine if a stressor 
would have population-level consequences, Dunlop et al. demonstrated 
that working backwards through a PCoD model can be used to assess the 
``worst case'' scenario for an interaction of a target species and 
stressor. This method may be useful for future management goals when 
appropriate data becomes available to fully support the model. In 
another example, harbor porpoise PCoD model investigating the impact of 
seismic surveys on harbor porpoise included an investigation on 
underlying drivers of vulnerability. Harbor porpoise movement and 
foraging were modeled for baseline periods and then for periods with 
seismic surveys as well; the models demonstrated that temporal (i.e., 
seasonal) variation in individual energetics and their link to costs 
associated with disturbances was key in predicting population impacts 
(Gallagher et al., 2021).
    Nearly all PCoD studies and experts agree that infrequent exposures 
of a single day or less are unlikely to impact individual fitness, let 
alone lead to population level effects (Booth et al., 2016; Booth et 
al., 2017; Christiansen and Lusseau 2015; Farmer et al., 2018; Wilson 
et al., 2020; Harwood and Booth 2016; King et al., 2015; McHuron et 
al., 2018; NAS 2017; New et al., 2014; Pirotta et al., 2018; Southall 
et al., 2007; Villegas-Amtmann et al., 2015). As described through this 
proposed rule, NMFS expects that any behavioral disturbance that would 
occur due to animals being exposed to construction activity would be of 
a relatively short duration, with behavior returning to a baseline 
state shortly after the acoustic stimuli ceases or the animal moves far 
enough away from the source. Given this, and NMFS' evaluation of the 
available PCoD studies, and the required mitigation discussed later, 
any such behavioral disturbance resulting from Sunrise's activities is 
not expected to impact individual animals' health or have effects on 
individual animals' survival or reproduction, thus no detrimental 
impacts at the population level are anticipated. Marine mammals may 
temporarily avoid the immediate area but are not expected to 
permanently abandon the area or their migratory or foraging behavior. 
Impacts to breeding, feeding, sheltering, resting, or migration are not 
expected nor are shifts in habitat use, distribution, or foraging 
success.

Potential Effects From Explosive Sources

    With respect to the noise from underwater explosives, the same 
acoustic-related impacts described above apply and are not repeated 
here. Noise from explosives can cause hearing impairment if an animal 
is close enough to the sources; however, because noise from an 
explosion is discrete, lasting less than approximately 1 second, no 
behavioral impacts below the TTS threshold are anticipated considering 
that Sunrise Wind would not detonate more than one UXO/MEC per day and 
only three during the life of the proposed rule. This section focuses 
on the pressure-related impacts of underwater explosives, including 
physiological injury and mortality.
    Underwater explosive detonations send a shock wave and sound energy 
through the water and can release gaseous by-products, create an 
oscillating bubble, or cause a plume of water to shoot up from the 
water surface. The shock wave and accompanying noise are of most 
concern to marine animals. Depending on the intensity of the shock wave 
and size, location, and depth of the animal, an animal can be injured, 
killed, suffer non-lethal physical effects, experience hearing related 
effects with or without behavioral responses, or exhibit temporary 
behavioral responses or tolerance from hearing the blast sound. 
Generally, exposures to higher levels of impulse and pressure levels 
would result in greater impacts to an individual animal.
    Injuries resulting from a shock wave take place at boundaries 
between tissues of different densities. Different velocities are 
imparted to tissues of different densities, and this can lead to their 
physical disruption. Blast effects are greatest at the gas-liquid 
interface (Landsberg, 2000). Gas-containing organs, particularly the 
lungs and gastrointestinal tract, are especially susceptible (Goertner, 
1982; Hill, 1978; Yelverton et al., 1973). Intestinal walls can bruise 
or rupture, with subsequent hemorrhage and escape of gut contents into 
the body cavity. Less severe gastrointestinal tract injuries include 
contusions, petechiae (small red or purple spots caused by bleeding in 
the skin), and slight hemorrhaging (Yelverton et al., 1973).
    Because the ears are the most sensitive to pressure, they are the 
organs most sensitive to injury (Ketten, 2000). Sound-related damage 
associated with sound energy from detonations can be theoretically 
distinct from injury from the shock wave, particularly farther from the 
explosion. If a noise is audible to an animal, it has the potential to 
damage the animal's hearing by causing decreased sensitivity (Ketten, 
1995). Lethal impacts are those that result in immediate death or 
serious debilitation in or near an intense source and are not, 
technically, pure acoustic trauma (Ketten, 1995). Sublethal impacts 
include hearing loss, which is caused by exposures to perceptible 
sounds. Severe damage (from the shock wave) to the ears includes 
tympanic membrane rupture, fracture of the ossicles, and damage to the 
cochlea, hemorrhage, and cerebrospinal fluid leakage into the middle 
ear. Moderate injury implies partial hearing loss due to tympanic 
membrane rupture and blood in the middle ear. Permanent hearing loss 
also can occur when the hair cells are damaged by one very loud event 
as well as by prolonged exposure to a loud noise or chronic exposure to 
noise. The level of impact from blasts depends on both an animal's 
location and, at outer zones, its sensitivity to the residual noise 
(Ketten, 1995).
    Given the mitigation measures proposed, it is unlikely that any of 
the

[[Page 9027]]

more serious injuries or mortality discussed above are likely to result 
from any UXO/MEC detonation that Sunrise Wind might need to undertake. 
PTS, TTS, and brief startle reactions are the most likely impacts to 
result from this activity, if it occurs (noting detonation is the last 
method to be chosen for removal).

Potential Effects of Vessel Strike

    Vessel collisions with marine mammals, also referred to as vessel 
strikes or ship strikes, can result in death or serious injury of the 
animal. Wounds resulting from ship strike may include massive trauma, 
hemorrhaging, broken bones, or propeller lacerations (Knowlton and 
Kraus, 2001). An animal at the surface could be struck directly by a 
vessel, a surfacing animal could hit the bottom of a vessel, or an 
animal just below the surface could be cut by a vessel's propeller. 
Superficial strikes may not kill or result in the death of the animal. 
Lethal interactions are typically associated with large whales, which 
are occasionally found draped across the bulbous bow of large 
commercial ships upon arrival in port. Although smaller cetaceans are 
more maneuverable in relation to large vessels than are large whales, 
they may also be susceptible to strike. The severity of injuries 
typically depends on the size and speed of the vessel (Knowlton and 
Kraus, 2001; Laist et al., 2001; Vanderlaan and Taggart, 2007; Conn and 
Silber, 2013). Impact forces increase with speed as does the 
probability of a strike at a given distance (Silber et al., 2010; Gende 
et al., 2011).
    The most vulnerable marine mammals are those that spend extended 
periods of time at the surface in order to restore oxygen levels within 
their tissues after deep dives (e.g., the sperm whale). In addition, 
some baleen whales seem generally unresponsive to vessel sound, making 
them more susceptible to vessel collisions (Nowacek et al., 2004). 
These species are primarily large, slow moving whales. Marine mammal 
responses to vessels may include avoidance and changes in dive pattern 
(NRC, 2003).
    An examination of all known ship strikes from all shipping sources 
(civilian and military) indicates vessel speed is a principal factor in 
whether a vessel strike occurs and, if so, whether it results in 
injury, serious injury, or mortality (Knowlton and Kraus, 2001; Laist 
et al., 2001; Jensen and Silber, 2003; Pace and Silber, 2005; 
Vanderlaan and Taggart, 2007; Conn and Silber 2013). In assessing 
records in which vessel speed was known, Laist et al. (2001) found a 
direct relationship between the occurrence of a whale strike and the 
speed of the vessel involved in the collision. The authors concluded 
that most deaths occurred when a vessel was traveling in excess of 13 
knots.
    Jensen and Silber (2003) detailed 292 records of known or probable 
ship strikes of all large whale species from 1975 to 2002. Of these, 
vessel speed at the time of collision was reported for 58 cases. Of 
these 58 cases, 39 (or 67 percent) resulted in serious injury or death 
(19 of those resulted in serious injury as determined by blood in the 
water, propeller gashes or severed tailstock, and fractured skull, jaw, 
vertebrae, hemorrhaging, massive bruising or other injuries noted 
during necropsy and 20 resulted in death). Operating speeds of vessels 
that struck various species of large whales ranged from 2 to 51 kn. The 
majority (79 percent) of these strikes occurred at speeds of 13 kn or 
greater. The average speed that resulted in serious injury or death was 
18.6 kn. Pace and Silber (2005) found that the probability of death or 
serious injury increased rapidly with increasing vessel speed. 
Specifically, the predicted probability of serious injury or death 
increased from 45 to 75 percent as vessel speed increased from 10 to 14 
kn, and exceeded 90 percent at 17 kn. Higher speeds during collisions 
result in greater force of impact and also appear to increase the 
chance of severe injuries or death. While modeling studies have 
suggested that hydrodynamic forces pulling whales toward the vessel 
hull increase with increasing speed (Clyne, 1999; Knowlton et al., 
1995), this is inconsistent with Silber et al. (2010), which 
demonstrated that there is no such relationship (i.e., hydrodynamic 
forces are independent of speed).
    In a separate study, Vanderlaan and Taggart (2007) analyzed the 
probability of lethal mortality of large whales at a given speed, 
showing that the greatest rate of change in the probability of a lethal 
injury to a large whale as a function of vessel speed occurs between 
8.6 and 15 kn. The chances of a lethal injury decline from 
approximately 80 percent at 15 kn to approximately 20 percent at 8.6 
kn. At speeds below 11.8 kn, the chances of lethal injury drop below 50 
percent, while the probability asymptotically increases toward 100 
percent above 15 kn.
    The Jensen and Silber (2003) report notes that the Large Whale Ship 
Strike Database represents a minimum number of collisions because the 
vast majority probably goes undetected or unreported. In contrast, 
Sunrise Wind's personnel are likely to detect any strike that does 
occur because of the required personnel training and lookouts, along 
with the inclusion of Protected Species Observers (as described in the 
Proposed Mitigation section), and they are required to report all ship 
strikes involving marine mammals.
    In the Sunrise Wind project area, NMFS has no documented vessel 
strikes of marine mammals by Sunrise Wind or Orsted during previous 
site characterization surveys. Given the comprehensive mitigation and 
monitoring measures (see the Proposed Mitigation and Proposed 
Monitoring and Reporting section) that would be required of Sunrise 
Wind, NMFS believes that vessel strike is not likely to occur.

Potential Effects to Marine Mammal Habitat

    Sunrise Wind's proposed construction activities could potentially 
affect marine mammal habitat through the introduction of impacts to the 
prey species of marine mammals, acoustic habitat (sound in the water 
column), water quality, and important habitat for marine mammals.
    The presence of structures, such as wind turbines, are likely to 
result in both local and broader oceanographic effects. 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 dipoles of surface elevation changes stretching hundreds of 
kilometers (Christiansen et al., 2022).
Effects on Prey
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, and zooplankton). Marine mammal prey varies by 
species, season, and location and, for some, is not well documented. 
Here, we describe studies regarding the effects of noise on known 
marine mammal prey.
    Fish utilize the soundscape and components of sound in their 
environment to perform important functions such as foraging, predator 
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009). 
The most likely effects on fishes exposed to loud, intermittent, low-
frequency sounds are behavioral responses (i.e., flight or avoidance). 
Short duration, sharp sounds (such as pile driving or air guns) can 
cause overt or subtle changes in fish behavior and local distribution. 
The reaction of fish to acoustic sources depends on the physiological 
state of the fish, past exposures, motivation (e.g., feeding, spawning, 
migration), and other environmental factors. Key impacts to fishes may 
include

[[Page 9028]]

behavioral responses, hearing damage, barotrauma (pressure-related 
injuries), and mortality. While it is clear that the behavioral 
responses of individual prey, such as displacement or other changes in 
distribution, can have direct impacts on the foraging success of marine 
mammals, the effects on marine mammals of individual prey that 
experience hearing damage, barotrauma, or mortality is less clear, 
though obviously population scale impacts that meaningfully reduce the 
amount of prey available could have more serious impacts.
    Fishes, like other vertebrates, have a variety of different sensory 
systems to glean information from ocean around them (Astrup and Mohl, 
1993; Astrup, 1999; Braun and Grande, 2008; Carroll et al., 2017; 
Hawkins and Johnstone, 1978; Ladich and Popper, 2004; Ladich and 
Schulz-Mirbach, 2016; Mann, 2016; Nedwell et al., 2004; Popper et al., 
2003; Popper et al., 2005). Depending on their hearing anatomy and 
peripheral sensory structures, which vary among species, fishes hear 
sounds using pressure and particle motion sensitivity capabilities and 
detect the motion of surrounding water (Fay et al., 2008) (terrestrial 
vertebrates generally only detect pressure). Most marine fishes 
primarily detect particle motion using the inner ear and lateral line 
system while some fishes possess additional morphological adaptations 
or specializations that can enhance their sensitivity to sound 
pressure, such as a gas-filled swim bladder (Braun and Grande, 2008; 
Popper and Fay, 2011).
    Hearing capabilities vary considerably between different fish 
species with data only available for just over 100 species out of the 
34,000 marine and freshwater fish species (Eschmeyer and Fong, 2016). 
In order to better understand acoustic impacts on fishes, fish hearing 
groups are defined by species that possess a similar continuum of 
anatomical features, which result in varying degrees of hearing 
sensitivity (Popper and Hastings, 2009a). There are four hearing groups 
defined for all fish species (modified from Popper et al., 2014) within 
this analysis, and they include: fishes without a swim bladder (e.g., 
flatfish, sharks, rays, etc.); fishes with a swim bladder not involved 
in hearing (e.g., salmon, cod, pollock, etc.); fishes with a swim 
bladder involved in hearing (e.g., sardines, anchovy, herring, etc.); 
and fishes with a swim bladder involved in hearing and high-frequency 
hearing (e.g., shad and menhaden). Most marine mammal fish prey species 
would not be likely to perceive or hear mid- or high-frequency sonars. 
While hearing studies have not been done on sardines and northern 
anchovies, it would not be unexpected for them to have hearing 
similarities to Pacific herring (up to 2-5 kHz) (Mann et al., 2005). 
Currently, less data are available to estimate the range of best 
sensitivity for fishes without a swim bladder.
    In terms of physiology, multiple scientific studies have documented 
a lack of mortality or physiological effects to fish from exposure to 
low- and mid-frequency sonar and other sounds (Halvorsen et al., 2012; 
J[oslash]rgensen et al., 2005; Juanes et al., 2017; Kane et al., 2010; 
Kvadsheim and Sevaldsen, 2005; Popper et al., 2007; Popper et al., 
2016; Watwood et al., 2016). Techer et al. (2017) exposed carp in 
floating cages for up to 30 days to low-power 23 and 46 kHz source 
without any significant physiological response. Other studies have 
documented either a lack of TTS in species whose hearing range cannot 
perceive sonar (such as Navy sonar), or for those species that could 
perceive sonar-like signals, any TTS experienced would be recoverable 
(Halvorsen et al., 2012; Ladich and Fay, 2013; Popper and Hastings, 
2009a, 2009b; Popper et al., 2014; Smith, 2016). Only fishes that have 
specializations that enable them to hear sounds above about 2,500 Hz 
(2.5 kHz) such as herring (Halvorsen et al., 2012; Mann et al., 2005; 
Mann, 2016; Popper et al., 2014) would have the potential to receive 
TTS or exhibit behavioral responses from exposure to mid-frequency 
sonar. In addition, any sonar induced TTS to fish whose hearing range 
could perceive sonar would only occur in the narrow spectrum of the 
source (e.g., 3.5 kHz) compared to the fish's total hearing range 
(e.g., 0.01 kHz to 5 kHz).
    In terms of behavioral responses, Juanes et al. (2017) discuss the 
potential for negative impacts from anthropogenic noise on fish, but 
the author's focus was on broader based sounds, such as ship and boat 
noise sources. Watwood et al. (2016) also documented no behavioral 
responses by reef fish after exposure to mid-frequency active sonar. 
Doksaeter et al. (2009; 2012) reported no behavioral responses to mid-
frequency sonar (such as naval sonar) by Atlantic herring; 
specifically, no escape reactions (vertically or horizontally) were 
observed in free swimming herring exposed to mid-frequency sonar 
transmissions. Based on these results (Doksaeter et al., 2009; 
Doksaeter et al., 2012; Sivle et al., 2012), Sivle et al. (2014) 
created a model in order to report on the possible population-level 
effects on Atlantic herring from active sonar. The authors concluded 
that the use of sonar poses little risk to populations of herring 
regardless of season, even when the herring populations are aggregated 
and directly exposed to sonar. Finally, Bruintjes et al. (2016) 
commented that fish exposed to any short-term noise within their 
hearing range might initially startle, but would quickly return to 
normal behavior.
    Occasional behavioral reactions to activities that produce 
underwater noise sources are unlikely to cause long-term consequences 
for individual fish or populations. The most likely impact to fish from 
impact and vibratory pile driving activities at the project areas would 
be temporary behavioral avoidance of the area. Any behavioral avoidance 
by fish of the disturbed area would still leave significantly large 
areas of fish and marine mammal foraging habitat in the nearby 
vicinity. The duration of fish avoidance of an area after pile driving 
stops is unknown, but a rapid return to normal recruitment, 
distribution and behavior is anticipated. In general, impacts to marine 
mammal prey species are expected to be minor and temporary due to the 
expected short daily duration of individual pile driving events and the 
relatively small areas being affected. SPLs of sufficient strength have 
been known to cause injury to fish and fish mortality. However, in most 
fish species, hair cells in the ear continuously regenerate and loss of 
auditory function likely is restored when damaged cells are replaced 
with new cells. Halvorsen et al. (2012a) showed that a TTS of 4-6 dB 
was recoverable within 24 hours for one species. Impacts would be most 
severe when the individual fish is close to the source and when the 
duration of exposure is long. Injury caused by barotrauma can range 
from slight to severe and can cause death and is most likely for fish 
with swim bladders. Barotrauma injuries have been documented during 
controlled exposure to impact pile driving (Halvorsen et al., 2012b; 
Casper et al., 2013). As described in the Proposed Mitigation section 
below, Sunrise Wind would utilize a sound attenuation device which 
would reduce potential for injury to marine mammal prey. Other fish 
that experience hearing loss as a result of exposure to explosions and 
impulsive sound sources may have a reduced ability to detect relevant 
sounds such as predators, prey, or social vocalizations. However, PTS 
has not been known to occur in fishes and any hearing loss in fish may 
be as temporary as the timeframe required to repair or replace the 
sensory cells that were damaged or destroyed (Popper et al., 2005; 
Popper et al., 2014; Smith et al., 2006). It is not

[[Page 9029]]

known if damage to auditory nerve fibers could occur, and if so, 
whether fibers would recover during this process.
    It is also possible for fish to be injured or killed by an 
explosion from UXO/MEC detonation. Physical effects from pressure waves 
generated by underwater sounds (e.g., underwater explosions) could 
potentially affect fish within proximity of training or testing 
activities. The shock wave from an underwater explosion is lethal to 
fish at close range, causing massive organ and tissue damage and 
internal bleeding (Keevin and Hempen, 1997). At greater distance from 
the detonation point, the extent of mortality or injury depends on a 
number of factors including fish size, body shape, orientation, and 
species (Keevin and Hempen, 1997; Wright, 1982). At the same distance 
from the source, larger fish are generally less susceptible to death or 
injury, elongated forms that are round in cross-section are less at 
risk than deep-bodied forms, and fish oriented sideways to the blast 
suffer the greatest impact (Edds-Walton and Finneran, 2006; O'Keeffe, 
1984; O'Keeffe and Young, 1984; Wiley et al., 1981; Yelverton et al., 
1975). Species with gas-filled organs are more susceptible to injury 
and mortality than those without them (Gaspin, 1975; Gaspin et al., 
1976; Goertner et al., 1994). Barotrauma injuries have been documented 
during controlled exposure to impact pile driving (an impulsive noise 
source, as are explosives and air guns) (Halvorsen et al., 2012b; 
Casper et al., 2013).
    Fish not killed or driven from a location by an explosion might 
change their behavior, feeding pattern, or distribution. Changes in 
behavior of fish have been observed as a result of sound produced by 
explosives, with effect intensified in areas of hard substrate (Wright, 
1982). Stunning from pressure waves could also temporarily immobilize 
fish, making them more susceptible to predation. The abundances of 
various fish (and invertebrates) near the detonation point for 
explosives could be altered for a few hours before animals from 
surrounding areas repopulate the area. However, these populations would 
likely be replenished as waters near the detonation point are mixed 
with adjacent waters. Repeated exposure of individual fish to sounds 
from underwater explosions is not likely and are expected to be short-
term and localized. Long-term consequences for fish populations would 
not be expected. Several studies have demonstrated that air gun sounds 
might affect the distribution and behavior of some fishes, potentially 
impacting foraging opportunities or increasing energetic costs (e.g., 
Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al., 
1992; Santulli et al., 1999; Paxton et al., 2017).
    UXO/MEC detonations would be dispersed in space and time; 
therefore, repeated exposure of individual fishes are unlikely. 
Mortality and injury effects to fishes from explosives would be 
localized around the area of a given in-water explosion but only if 
individual fish and the explosive (and immediate pressure field) were 
co-located at the same time. Fishes deeper in the water column or on 
the bottom would not be affected by water surface explosions. Repeated 
exposure of individual fish to sound and energy from underwater 
explosions is not likely given fish movement patterns, especially 
schooling prey species. Most acoustic effects, if any, are expected to 
be short-term and localized. Long-term consequences for fish 
populations, including key prey species within the project area, would 
not be expected.
    Required soft-starts would allow prey and marine mammals to move 
away from the source prior to any noise levels that may physically 
injure prey and the use of the noise attenuation devices would reduce 
noise levels to the degree any mortality or injury of prey is also 
minimized. Use of bubble curtains, in addition to reducing impacts to 
marine mammals, for example, is a key mitigation measure in reducing 
injury and mortality of ESA-listed salmon on the West Coast. However, 
we recognize some mortality, physical injury and hearing impairment in 
marine mammal prey may occur, but we anticipate the amount of prey 
impacted in this manner is minimal compared to overall availability. 
Any behavioral responses to pile driving by marine mammal prey are 
expected to be brief. We expect that other impacts, such as stress or 
masking, would occur in fish that serve as marine mammals prey (Popper 
et al., 2019); however, those impacts would be limited to the duration 
of impact pile driving and during any UXO/MEC detonations and, if prey 
were to move out the area in response to noise, these impacts would be 
minimized.
    In addition to fish, prey sources such as marine invertebrates 
could potentially be impacted by noise stressors as a result of the 
proposed activities. However, most marine invertebrates' ability to 
sense sounds is limited. Invertebrates appear to be able to detect 
sounds (Pumphrey, 1950; Frings and Frings, 1967) and are most sensitive 
to low-frequency sounds (Packard et al., 1990; Budelmann and 
Williamson, 1994; Lovell et al., 2005; Mooney et al., 2010). Data on 
response of invertebrates such as squid, another marine mammal prey 
species, to anthropogenic sound is more limited (de Soto, 2016; Sole et 
al., 2017b). Data suggest that cephalopods are capable of sensing the 
particle motion of sounds and detect low frequencies up to 1-1.5 kHz, 
depending on the species, and so are likely to detect air gun noise 
(Kaifu et al., 2008; Hu et al., 2009; Mooney et al., 2010; Samson et 
al., 2014). Sole et al. (2017) reported physiological injuries to 
cuttlefish in cages placed at-sea when exposed during a controlled 
exposure experiment to low-frequency sources (315 Hz, 139 to 142 dB re 
1 [mu]Pa2 and 400 Hz, 139 to 141 dB re 1 
[mu]Pa2). Fewtrell and McCauley (2012) reported squids 
maintained in cages displayed startle responses and behavioral changes 
when exposed to seismic air gun sonar (136-162 re 1 
[mu]Pa2[middot]s). Jones et al. (2020) found that when squid 
(Doryteuthis pealeii) were exposed to impulse pile driving noise, body 
pattern changes, inking, jetting, and startle responses were observed 
and nearly all squid exhibited at least one response. However, these 
responses occurred primarily during the first eight impulses and 
diminished quickly, indicating potential rapid, short-term habituation. 
Cephalopods have a specialized sensory organ inside the head called a 
statocyst that may help an animal determine its position in space 
(orientation) and maintain balance (Budelmann, 1992). Packard et al. 
(1990) showed that cephalopods were sensitive to particle motion, not 
sound pressure, and Mooney et al. (2010) demonstrated that squid 
statocysts act as an accelerometer through which particle motion of the 
sound field can be detected. Auditory injuries (lesions occurring on 
the statocyst sensory hair cells) have been reported upon controlled 
exposure to low-frequency sounds, suggesting that cephalopods are 
particularly sensitive to low-frequency sound (Andre et al., 2011; Sole 
et al., 2013). Behavioral responses, such as inking and jetting, have 
also been reported upon exposure to low-frequency sound (McCauley et 
al., 2000b; Samson et al., 2014). Squids, like most fish species, are 
likely more sensitive to low frequency sounds and may not perceive mid- 
and high-frequency sonars. Cumulatively for squid as a prey species, 
individual and population impacts from exposure to explosives, like 
fish, are not likely to be significant, and explosive impacts would be 
short-term and localized.
    There is little information concerning potential impacts of noise 
on

[[Page 9030]]

zooplankton populations. However, one recent study (McCauley et al., 
2017) investigated zooplankton abundance, diversity, and mortality 
before and after exposure to air gun noise, finding that the exposure 
resulted in significant depletion for more than half the taxa present 
and that there were two to three times more dead zooplankton after air 
gun exposure compared with controls for all taxa. The majority of taxa 
present were copepods and cladocerans; for these taxa, the range within 
which effects on abundance were detected was up to approximately 1.2 
km. In order to have significant impacts on r-selected species such as 
plankton, the spatial or temporal scale of impact must be large in 
comparison with the ecosystem concerned (McCauley et al., 2017).
    The presence of large numbers of turbines has been shown to impact 
meso- and sub-meso-scale water column circulation, which can affect the 
density, distribution, and energy content of zooplankton and thereby, 
their availability as marine mammal prey. The presence and operation 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 marine mammal prey, such as dense aggregations and 
distribution of zooplankton 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 meters to hundreds of meters for local 
individual turbine impacts (Schultze et al., 2020) to large-scale 
dipoles of surface elevation changes stretching hundreds of kilometers 
(Christiansen et al., 2022).
    Sunrise Wind intends to install up to 94 turbines that would be 
operational towards the end of Year 1. As described above, there is 
scientific uncertainty around the scale of oceanographic impacts 
(meters to kilometers) associated with turbine operation. Sunrise Wind 
is located in an area of the New England that experiences coastal 
upwelling, a consequence of the predominant wind direction and the 
orientation of the coastline. Along the coast of Rhode Island and 
southern Massachusetts, upwelling of deeper, nutrient-rich waters 
frequently leads to late summer blooms of phytoplankton and 
subsequently increased biological productivity (Gong et al., 2010; 
Glenn et al., 2004). However, the project area does not include key 
foraging grounds for marine mammals with planktonic diets (e.g, North 
Atlantic right whale), and prime foraging habitat near Nantucket Shoals 
is unlikely to be influenced.
    These potential impacts on prey could impact the distribution of 
marine mammals within the project area, potentially necessitating 
additional energy expenditure to find and capture prey, but at the 
temporal and spatial scales anticipated for this activity are not 
expected to impact the reproduction or survival of any individual 
marine mammals. Although studies assessing the impacts of offshore wind 
development on marine mammals are limited, the repopulation of wind 
energy areas by harbor porpoises (Brandt et al., 2016; Lindeboom et 
al., 2011) and harbor seals (Lindeboom et al., 2011; Russell et al., 
2016) following the installation of wind turbines are promising. 
Overall, any impacts to marine mammal foraging capabilities due to 
effects on prey aggregation from Sunrise Wind turbine presence and 
operation during the effective period of the proposed rule is likely to 
be limited and nearby habitat that is known to support North Atlantic 
right whale foraging would be unaffected by SWF operation.
    In general, impacts to marine mammal prey species are expected to 
be relatively minor and temporary due to the expected short daily 
duration of individual pile driving events and the relatively small 
areas being affected. The most likely impacts of prey fish from UXO/MEC 
detonations, if determined to be necessary, are injury or mortality if 
they are located within the vicinity when detonation occurs. However, 
given the likely spread of any UXOs/MECs in the project area, the low 
chance of detonation (as lift-and-shift and deflagration are the 
primary removal approaches), and that this area is not a biologically 
important foraging ground, overall effects should be minimal to marine 
mammal species. NMFS does not expect HRG acoustic sources to impact 
fish and most sources are likely outside the hearing range of the 
primary prey species in the project area.
    Overall, the combined impacts of sound exposure, explosions, and 
oceanographic impacts on marine mammal habitat resulting from the 
proposed activities would not be expected to have measurable effects on 
populations of marine mammal prey species. Prey species exposed to 
sound might move away from the sound source, experience TTS, experience 
masking of biologically relevant sounds, or show no obvious direct 
effects.
Acoustic Habitat
    Acoustic habitat is the soundscape, which encompasses all of the 
sound present in a particular location and time, as a whole when 
considered from the perspective of the animals experiencing it. Animals 
produce sound for, or listen for sounds produced by, conspecifics 
(communication during feeding, mating, and other social activities), 
other animals (finding prey or avoiding predators), and the physical 
environment (finding suitable habitats, navigating). Together, sounds 
made by animals and the geophysical environment (e.g., produced by 
earthquakes, lightning, wind, rain, waves) make up the natural 
contributions to the total acoustics of a place. These acoustic 
conditions, termed acoustic habitat, are one attribute of an animal's 
total habitat.
    Soundscapes are also defined by, and acoustic habitat influenced 
by, the total contribution of anthropogenic sound. This may include 
incidental emissions from sources such as vessel traffic or may be 
intentionally introduced to the marine environment for data acquisition 
purposes (as in the use of air gun arrays) or for Navy training and 
testing purposes (as in the use of sonar and explosives and other 
acoustic sources). Anthropogenic noise varies widely in its frequency, 
content, duration, and loudness and these characteristics greatly 
influence the potential habitat-mediated effects to marine mammals 
(please also see the previous discussion on Masking), which may range 
from local effects for brief periods of time to chronic effects over 
large areas and for long durations. Depending on the extent of effects 
to habitat, animals may alter their communications signals (thereby 
potentially expending additional energy) or miss acoustic cues (either 
conspecific or adventitious). Problems arising from a failure to detect 
cues are more likely to occur when noise stimuli are chronic and 
overlap with biologically relevant cues used for communication, 
orientation, and predator/prey detection (Francis and Barber, 2013). 
For more detail on these concepts see, e.g., Barber et al., 2009; 
Pijanowski et al., 2011; Francis and Barber, 2013; Lillis et al., 2014.
    The term ``listening area'' refers to the region of ocean over 
which sources of sound can be detected by an animal at the center of 
the space. Loss of communication space concerns the area over which a 
specific animal signal, used to communicate with conspecifics in 
biologically important contexts (e.g., foraging, mating), can be heard, 
in noisier relative to quieter conditions

[[Page 9031]]

(Clark et al., 2009). Lost listening area concerns the more generalized 
contraction of the range over which animals would be able to detect a 
variety of signals of biological importance, including eavesdropping on 
predators and prey (Barber et al., 2009). Such metrics do not, in and 
of themselves, document fitness consequences for the marine animals 
that live in chronically noisy environments. Long-term population-level 
consequences mediated through changes in the ultimate survival and 
reproductive success of individuals are difficult to study, and 
particularly so underwater. However, it is increasingly well documented 
that aquatic species rely on qualities of natural acoustic habitats 
with researchers quantifying reduced detection of important ecological 
cues (e.g., Francis and Barber, 2013; Slabbekoorn et al., 2010) as well 
as survivorship consequences in several species (e.g., Simpson et al., 
2014; Nedelec et al., 2015).
    Sound produced from construction activities in the Sunrise Wind 
project area would be temporary and transitory. The sounds produced 
during construction activities may be widely dispersed or concentrated 
in small areas for varying periods. Any anthropogenic noise attributed 
to construction activities in the project area would be temporary and 
the affected area would be expected to immediately return to the 
original state when these activities cease.
Water Quality
    Impacts to the immediate substrate during installation of piles are 
anticipated, but these would be limited to minor, temporary suspension 
of sediments, which could impact water quality and visibility for a 
short amount of time but which would not be expected to have any 
effects on individual marine mammals. Indirect effects of explosives 
and unexploded ordnance to marine mammals via sediment is possible in 
the immediate vicinity of the ordnance but through the implementation 
of the mitigation, is it not anticipated marine mammals would be in the 
direct area of the explosive source. Further, contamination of water is 
not anticipated. Degradation products of Royal Demolition Explosive are 
not toxic to marine organisms at realistic exposure levels (Rosen and 
Lotufo, 2010). Relatively low solubility of most explosives and their 
degradation products means that concentrations of these contaminants in 
the marine environment are relatively low and readily diluted. 
Furthermore, while explosives and their degradation products were 
detectable in marine sediment approximately 6-12 in (0.15-0.3 m) away 
from degrading ordnance, the concentrations of these compounds were not 
statistically distinguishable from background beyond 3-6 ft (1-2 m) 
from the degrading ordnance. Sunrise Wind anticipates that, at most, 
they would detonate up to three UXO/MECs during the effective period of 
the rule. As such, no water quality concerns exist.
    Equipment used by Sunrise Wind within the project area, including 
ships and other marine vessels, potentially aircrafts, and other 
equipment, are also potential sources of by-products. All equipment is 
properly maintained in accordance with applicable legal requirements. 
All such operating equipment meets Federal water quality standards, 
where applicable.
Reef Effects
    The presence of the SRWF foundations, scour protection, and cable 
protection will result in a conversion of the existing sandy bottom 
habitat to a hard bottom habitat with areas of vertical structural 
relief (Sunrise Wind 2022). This could potentially alter the existing 
habitat by creating an ``artificial reef effect'' that results in 
colonization by assemblages of both sessile and mobile animals within 
the new hard-bottom habitat (Wilhelmsson et al. 2006; Reubens et al. 
2013; Bergstr[ouml]m et al. 2014; Coates et al. 2014).
    Artificial structures can create increased habitat heterogeneity 
important for species diversity and density (Langhamer 2012). The WTG 
and OCS-DC foundations will extend through the water column, which may 
serve to increase settlement of meroplankton or planktonic larvae on 
the structures in both the pelagic and benthic zones (Boehlert and Gill 
2010). Fish and invertebrate species are also likely to aggregate 
around the foundations and scour protection which could provide 
increased prey availability and structural habitat (Boehlert and Gill 
2010; Bonar et al. 2015).
    Numerous studies have documented significantly higher fish 
concentrations including species like cod and pouting (Trisopterus 
luscus), flounder (Platichthys flesus), eelpout (Zoarces viviparus), 
and eel (Anguilla anguilla) near in-water structures than in 
surrounding soft bottom habitat (Langhamer and Wilhelmsson 2009; 
Bergstr[ouml]m et al. 2013; Reubens et al. 2013). In the German Bight 
portion of the North Sea, fish were most densely congregated near the 
anchorages of jacket foundations, and the structures extending through 
the water column were thought to make it more likely that juvenile or 
larval fish encounter and settle on them (RI-CRMC 2010; Krone et al. 
2013). In addition, fish can take advantage of the shelter provided by 
these structures while also being exposed to stronger currents created 
by the structures, which generate increased feeding opportunities and 
decreased potential for predation (Wilhelmsson et al. 2006). The 
presence of the foundations and resulting fish aggregations around the 
foundations is expected to be a long-term habitat impact, but the 
increase in prey availability could potentially be beneficial for some 
marine mammals.
    The most likely impact to marine mammal habitat from the project is 
expected to be from impact and vibratory pile driving and UXO/MEC 
detonations, which may affect marine mammal food sources such as forage 
fish and could also affect acoustic habitat (see the Auditory Masking 
section) effects on marine mammal prey (e.g., fish).

Potential Effects From Offshore Wind Farm Operational Noise

    Although this proposed rulemaking primarily covers the noise 
produced from construction activities relevant to the Sunrise Wind 
offshore wind facility, operational noise was a consideration in NMFS' 
analysis of the project, as all 94 turbines would become operational 
within the effective dates of the rule, beginning no sooner than Q2 
2024. It is expected that all turbines would be operational by Q4 2024. 
Once operational, offshore wind turbines are known to produce 
continuous, non-impulsive underwater noise, primarily below 8 kHz.
    In both newer, quieter, direct-drive systems (such as what has been 
proposed for Sunrise Wind) and older generation, geared turbine 
designs, recent scientific studies indicate that operational noise from 
turbines is on the order of 110 to 125 dB re 1 [mu]Pa root-mean-square 
sound pressure level (SPLrms) at an approximate distance of 
50 m (Tougaard et al., 2020). Tougaard et al. (2020) further noted that 
sound levels could reach as high as 128 dB re 1 [mu]Pa 
SPLrms in the 10 Hz to 8 kHz range. However, the Tougaard et 
al. (2020) study assumed that the largest WTG was 3.6 MW, which is much 
smaller than those being considered for the Sunrise Wind project. 
Tougaard further stated that the operational noise produced by WTGs is 
static in nature and lower than noise produced by passing ships. This 
is a noise source in this region to which marine mammals

[[Page 9032]]

are likely already habituated. Furthermore, operational noise levels 
are likely lower than those ambient levels already present in active 
shipping lanes, such that operational noise would likely only be 
detected in very close proximity to the WTG (Thomsen et al., 2006; 
Tougaard et al., 2020). In addition, Madsen et al. (2006) found the 
intensity of noise generated by operational wind turbines to be much 
less than the noises present during construction, although this 
observation was based on a single turbine with a maximum power of 2 MW. 
Other studies by Jansen and de Jong (2016) and Tougaard et al. (2009) 
determined that, while marine mammals would be able to detect 
operational noise from offshore wind farms (again, based on older 2 MW 
models) for several thousand kilometer, they expected no significant 
impacts on individual survival, population viability, marine mammal 
distribution, or the behavior of the animals considered in their study 
(harbor porpoises and harbor seals).
    More recently, St[ouml]ber and Thomsen (2021) used monitoring data 
and modeling to estimate noise generated by more recently developed, 
larger (10 MW) direct-drive WTGs. Their findings, similar to Tougaard 
et al. (2020), demonstrate that there is a trend that operational noise 
increases with turbine size. Their study found noise levels could 
exceed 170 (to 177 dB re 1 [mu]Pa SPLrms for a 10 MW WTG); 
however, those noise levels were generated by geared turbines, but 
newer turbines operate with direct drive technology. The shift from 
using gear boxes to direct drive technology is expected to reduce the 
sound level by 10 dB. The findings in the St[ouml]ber and Thomsen 
(2021) study have not been validated. Sunrise Wind did not request, and 
NMFS is not proposing to authorize, take incidental to operational 
noise from WTGs. Therefore, the topic is not discussed or analyzed 
further herein.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
proposed for authorization through these regulations, which will inform 
both NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as noise 
from impact and vibratory pile driving, HRG surveys, and UXO/MEC 
detonations could result in behavioral disturbance. Impacts such as 
masking and TTS can contribute to behavior disturbances. There is also 
some potential for auditory injury (Level A harassment) of mysticetes 
(fin whales, humpback whales, minke whales, sei whales), high frequency 
cetaceans (harbor porpoises), and phocids (gray seals and harbor seals) 
due to their hearing sensitivities and the nature of the activities. As 
described below, the larger distances to the PTS thresholds, when 
considering marine mammal weighting functions, demonstrate this 
potential. For mid-frequency hearing sensitivities, when thresholds and 
weighting and the associated PTS zone sizes are considered, the 
potential for PTS from the noise produced by the project is negligible. 
Similarly, non-auditory injury (Level A harassment) resulting from UXO/
MEC detonation is considered unlikely, given the thresholds, associated 
impact zone sizes, and required mitigation, and none is anticipated or 
proposed for authorization. While NMFS is proposing to authorize Level 
A harassment and Level B harassment, the proposed mitigation and 
monitoring measures are expected to minimize the amount and severity of 
such taking to the extent practicable (see Proposed Mitigation).
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized incidental to Sunrise Wind's 
specified activities. Pile driving does not inherently have the 
potential to elicit marine mammal mortality or serious injury. While 
mortality and serious injury of marine mammals could occur from vessel 
strikes or UXO/MEC detonation if an animal is close enough to the 
source, the mitigation and monitoring measures contained within this 
proposed rule would avoid this manner of take. Hence, no mortality or 
serious injury is anticipated or proposed to be authorized. The 
proposed mitigation and monitoring measures are expected to minimize 
the amount and severity of the taking proposed to be authorized to the 
maximum extent practicable. Below we describe how the proposed take 
numbers are estimated.
    For acoustic impacts, we estimate take by considering: (1) acoustic 
thresholds above which the best scientific information available 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
the number of days of activities. We note that while these factors can 
contribute to a basic calculation to provide an initial prediction of 
potential takes; additional information that can qualitatively inform 
take estimates is also sometimes available (e.g., previous monitoring 
results or average group size). Below, we describe the factors 
considered here in more detail and present the proposed take estimates.
    In this case, as described below, there are multiple lines of data 
with which to address density or occurrence and, for each species and 
activity, the largest value resulting from the three take estimation 
methods described below (i.e., density-based, PSO-based, or mean group 
size) was carried forward as the amount of requested take by Level B 
harassment. The amount of requested take by Level A harassment reflects 
the density-based exposure estimates and for some species and 
activities, consideration of the effectiveness of mitigation measures 
to avoid or minimize the potential for injury.
    Below, we describe the acoustic thresholds NMFS uses, discuss the 
marine mammal density and occurrence information used, and then 
describe the modeling and methodologies applied to estimate take for 
each of Sunrise Wind's proposed construction activities. NMFS has 
carefully considered all information and analysis presented by the 
applicant as well as all other applicable information and, based on the 
best scientific information available, concurs that the applicant's 
estimates of the types and amounts of take for each species and stock 
are reasonable and is what NMFS is proposing to authorize. NMFS notes 
the take estimates described herein for foundation installation can be 
considered conservative as the estimates do not reflect the 
implementation of clearance and shutdown zones for any marine mammal 
species or stock, with the exception of the North Atlantic right whale. 
In the case of North Atlantic right whales, the potential for Level A 
harassment (PTS) has been determined to be reduced to a de minimis 
likelihood due to the enhanced mitigation and monitoring measures. The 
amount of Level B harassment take proposed to be

[[Page 9033]]

authorized for North Atlantic right whales does not consider the 
implementation of the enhanced mitigation measures (except for use of 
sound attenuation devices) and therefore, is considered conservative.

Marine Mammal Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment). Thresholds have also been developed to identify the 
pressure levels above which animals may incur different types of tissue 
damage (non-auditory injury or mortality) from exposure to pressure 
waves from explosive detonation. A summary of all NMFS' thresholds can 
be found at (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance).
Level B Harassment
    Though significantly driven by received level, the onset of 
behavioral disturbance from anthropogenic noise exposure is also 
informed to varying degrees by other factors related to the source or 
exposure context (e.g., frequency, predictability, duty cycle, duration 
of the exposure, signal-to-noise ratio, distance to the source, ambient 
noise, and the receiving animals (hearing, motivation, experience, 
demography, behavior at time of exposure, life stage, depth)) and can 
be difficult to predict (e.g., Southall et al., 2007, 2021; Ellison et 
al., 2012). Based on what the best scientific information available 
indicates and the practical need to use a threshold based on a metric 
that is both predictable and measurable for most activities, NMFS 
typically uses a generalized acoustic threshold based on received level 
to estimate the onset of behavioral harassment. NMFS generally predicts 
that marine mammals are likely to be behaviorally harassed in a manner 
considered to be Level B harassment when exposed to underwater 
anthropogenic noise above the received root-mean-square sound pressure 
levels (RMS SPL) of 120 dB (referenced to 1 micropascal (re 1 [mu]Pa)) 
for continuous (e.g., vibratory pile-driving, drilling) and above the 
received RMS SPL 160 dB re: 1 [mu]Pa for non-explosive impulsive (e.g., 
seismic airguns) or intermittent (e.g., scientific sonar) sources 
(Table 6). Generally speaking, Level B harassment take estimates based 
on these behavioral harassment thresholds are expected to include any 
likely takes by TTS as, in most cases, the likelihood of TTS occurs at 
distances from the source less than those at which behavioral 
harassment is likely. TTS of a sufficient degree can manifest as 
behavioral harassment, as reduced hearing sensitivity and the potential 
reduced opportunities to detect important signals (conspecific 
communication, predators, prey) may result in changes in behavior 
patterns that would not otherwise occur.

       Table 6--Underwater Level B Harassment Acoustic Thresholds
                              [NMFS, 2005]
------------------------------------------------------------------------
                                          Level B harassment threshold
              Source type                           (RMS SPL)
------------------------------------------------------------------------
Continuous............................  120 dB re 1 [micro]Pa.
Non-explosive impulsive or              160 dB re 1 [micro]Pa.
 intermittent.
------------------------------------------------------------------------

    Sunrise Wind's construction activities include the use of 
continuous (e.g., vibratory pile driving), intermittent (e.g., impact 
pile driving, HRG acoustic sources), and impulsive (e.g., UXO/MEC 
detonations) sources, and, therefore, the 120 and 160 dB re 1 [mu]Pa 
(rms) thresholds are applicable.

Level A Harassment

    NMFS' Technical Guidance for Assessing the Effects of Anthropogenic 
Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) 
identifies dual criteria to assess auditory injury (Level A harassment) 
to five different marine mammal groups (based on hearing sensitivity) 
as a result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). As dual metrics, NMFS considers onset of 
PTS (Level A harassment) to have occurred when either one of the two 
metrics is exceeded (i.e., metric resulting in the largest isopleth). 
Sunrise Wind's proposed activities include the use of both impulsive 
and non-impulsive sources.
    These thresholds are provided in Table 7 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                                Table 7--Onset of Permanent Threshold Shift (PTS)
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds *  (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lp,0-pk,flat: 219   Cell 2: LE,p,LF,24h: 199 dB.
                                          dB; LE,p,LF24h: 183dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lp,0-pk,flat: 230   Cell 4: LE,p,MF,24h: 198 dB.
                                          dB; LE,p,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lp,0-pk,flat: 202   Cell 6: LE,p,HF,24h: 173 dB.
                                          dB; LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lp,0-pk.flat: 218   Cell 8: LE,p,PW,24h: 201 dB.
                                          dB; LE,p,PW,24h: 185 dB.
----------------------------------------------------------------------------------------------------------------
* 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.

[[Page 9034]]

 
Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
  exposure level (LE,p) has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to be
  more reflective of International Organization for Standardization standards (ISO, 2017). The subscript
  ``flat'' is being included to indicate peak sound pressure are flat weighted or unweighted within the
  generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative
  sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF,
  and HF cetaceans, and PW 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.

Explosive Sources
    Based on the best scientific information available, NMFS uses the 
acoustic and pressure thresholds indicated in Tables 8 and 9 to predict 
the onset of behavioral harassment, TTS, PTS, tissue damage, and 
mortality.

                            Table 8--PTS Onset, TTS Onset, for Underwater Explosives
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                                     PTS impulsive        TTS impulsive        Behavioral threshold  (multiple
          Hearing group                thresholds           thresholds                  detonations)
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Cell 1: Lpk,flat:    Cell 2: Lpk,flat:    Cell 3: LE,LF,24h: 163 dB.
                                   219 dB; LE,LF,24h:   213 dB; LE,LF,24h:
                                   183 dB.              168 dB.
Mid-Frequency (MF) Cetaceans....  Cell 4: Lpk,flat:    Cell 5: Lpk,flat:    Cell 6: LE,MF,24h: 165 dB.
                                   230 dB; LE,MF,24h:   224 dB; LE,MF,24h:
                                   185 dB.              170 dB.
High-Frequency (HF) Cetaceans...  Cell 7: Lpk,flat:    Cell 8: Lpk,flat:    Cell 9: LE,HF,24h: 135 dB.
                                   202 dB; LE,HF,24h:   196 dB; LE,HF,24h:
                                   155 dB.              140 dB.
Phocid Pinnipeds (PW)             Cell 10: Lpk,flat:   Cell 11: Lpk,flat:   Cell 12: LE,PW,24h: 165 dB.
 (Underwater).                     218 dB; LE,PW,24h:   212 dB; LE,PW,24h:
                                   185 dB.              170 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS/TTS onset.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI, 2013). However, ANSI defines peak sound pressure as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  overall marine mammal generalized hearing range. The subscript associated with cumulative sound exposure level
  thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and
  PW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level
  thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle).
  When possible, it is valuable for action proponents to indicate the conditions under which these acoustic
  thresholds will be exceeded.

    Additional thresholds for non-auditory injury to lung and 
gastrointestinal (GI) tracts from the blast shock wave and/or onset of 
high peak pressures are also relevant (at relatively close ranges) as 
UXO/MEC detonations, in general, have potential to result in mortality 
and non-auditory injury (Table 9). Marine mammal lung injury criteria 
have been developed by the U.S. Navy (DoN (U.S. Department of the 
Navy), 2017) and are based on the mass of the animal and the depth at 
which it is present in the water column due to blast pressure. This 
means that specific decibel levels for each hearing group are not 
provided and instead, the criteria are presented as equations that 
allow for incorporation of specific mass and depth values. The GI tract 
injury threshold is based on peak pressure. The modified Goertner 
equations below represent the potential onset of lung injury and GI 
tract injury (Table 9).

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

    Below, we describe, in detail, the assumptions and methodologies 
used to estimate take, in consideration of acoustic thresholds and 
appropriate marine mammal density and occurrence information for WTG 
and OCS-DC foundation installation and landfall construction 
activities. Details on the methodologies used to estimate take for HRG 
surveys and UXO/MEC detonation can be found in the activity-specific 
subsection below. Resulting distances to thresholds, densities used, 
activity-specific exposure estimates (as relevant to the analysis), and 
activity-specific take estimates can be found in each activity 
subsection below. At the end of this section, we present the total 
annual and 5-year take estimates that Sunrise Wind requested, and NMFS 
proposes to authorize.

Acoustic Modeling

    As described above, underwater noise associated with the 
construction of offshore components of the SRWF will predominantly 
result from impact pile driving for the monopile and jacket foundations 
while noise from cable landfall construction will primarily result from 
impact pile driving for the casing pipe and vibratory pile driving of 
the goal posts. Sunrise Wind employed JASCO to conduct acoustic and 
animal movement exposure modeling to better understand sound fields 
produced during these activities and to estimate exposures (K[uuml]sel 
et al 2022). For installation of foundation piles, animal

[[Page 9035]]

movement modeling was used to estimate exposures. The basic modeling 
approach is to characterize the sounds produced by the source, 
determine how the sounds propagate within the surrounding water column, 
and then estimate species-specific exposure probability by considering 
the range- and depth-dependent sound fields in relation to animal 
movement in simulated representative construction scenarios.
    JASCO's Pile Driving Source Model (PDSM), a physical model of pile 
vibration and near-field sound radiation (MacGillivray 2014), was used 
in conjunction with the GRLWEAP 2010 wave equation model (GRLWEAP, Pile 
Dynamics 2010) to predict source levels associated with impact pile 
driving activities (WTG and OCS-DC foundation installation and casing 
pipe installation). The PDSM physical model computes the underwater 
vibration and sound radiation of a pile by solving the theoretical 
equations of motion for axial and radial vibrations of a cylindrical 
shell. Piles are modeled as a vertical installation using a finite-
difference structural model of pile vibration based on thin-shell 
theory. To model the sound emissions from the piles, the force of the 
pile driving hammers also had to be modeled. The force at the top of 
each 7/12 m monopile, jacket foundation pile, and casing pipe was 
computed using the GRLWEAP 2010 wave equation model (GRLWEAP, Pile 
Dynamics 2010), which includes a large database of simulated hammers. 
The forcing functions from GRLWEAP were used as inputs to the finite 
difference model to compute the resulting pile vibrations. The sound 
radiating from the pile itself was simulated using a vertical array of 
discrete point sources. These models account for several parameters 
that describe the operation--pile type, material, size, and length--the 
pile driving equipment, and approximate pile penetration depth. The 
model assumed direct contact between the representative hammers, 
helmets, and piles (i.e.,no cushioning material).
    Sunrise Wind would employ a noise attenuation system during all 
impact pile driving of monopile and jacket foundations. Noise 
attenuation systems, such as bubble curtains, are sometimes used to 
decrease the sound levels radiated from a source. Hence, hypothetical 
broadband attenuation levels of 0 dB, 6 dB, 10 dB, 15 dB, and 20 dB 
were incorporated into the foundation source models to gauge effects on 
the ranges to thresholds given these levels of attenuation. Although 
five attenuation levels were evaluated, Sunrise Wind and NMFS 
anticipates that the noise attenuation system ultimately chosen will be 
capable of reliably reducing source levels by 10 dB; therefore, 
modeling results assuming 10 dB attenuation are carried forward in this 
analysis for WTG and OCS-DC foundation installation. See the Proposed 
Mitigation section for more information regarding the justification for 
the 10 dB assumption.
    To estimate sound propagation during foundation installation, 
JASCO's used the Full Waveform Range-dependent Acoustic Model (FWRAM) 
(K[uuml]sel et al. 2022, Appendix E.4) to combine the outputs of the 
source model with spatial and temporal environmental factors (e.g., 
location, oceanographic conditions, and seabed type) to get time-domain 
representations of the sound signals in the environment and estimate 
sound field levels. Because the foundation pile is represented as a 
linear array and FWRAM employs the array starter method to accurately 
model sound propagation from a spatially distributed source 
(MacGillivray and Chapman, 2012), using FWRAM ensures accurate 
characterization of vertical directivity effects in the near-field 
zone. Due to seasonal changes in the water column, sound propagation is 
likely to differ at different times of the year. To capture this 
variability, acoustic modeling was conducted using an average sound 
speed profile for a ``summer'' period including the months of May 
through November, and a ``winter'' period including December through 
April. FWRAM computes pressure waveforms via Fourier synthesis of the 
modeled acoustic transfer function in closely spaced frequency bands. 
This model is used to estimate the energy distribution per frequency 
(source spectrum) at a close distance from the source (10 m). Examples 
of decidecade spectral levels for each foundation pile type, hammer 
energy, and modeled location, using average summer sound speed profile 
are provided in K[uuml]sel et al. (2022).
    Sounds produced by installation of the 7/12 m WTG monopiles were 
modeled at two locations: one in the northwest section of the SRWF area 
and one in the southeast section (Figure 8 in Sunrise Wind's 
application). The two WTG locations were selected to represent the 
relatively shallow (44.9 m; ID-97) northwest section of the SRWF and 
the somewhat deeper (56.6 m; ID-259) southeast section. The 
installation of pin piles to secure the OCS-DC jacket foundation were 
modeled at one location in the central portion of the SRWF area (50.6 m 
water depth; ID-200). All piles were assumed to be vertical and driven 
to a maximum expected penetration depth of 50 m for the WTG monopiles 
and 90 m for the OCS-DC jacket foundation pin piles monopiles.
    For the 7/12 m WTG monopiles, 10,398 total hammer strikes were 
assumed, with hammer energy varying from 1,000 to 3,200 kJ. A single 
strike at 4,000 kJ on a 7/12 m WTG monopile was also modeled in case 
the use of the maximum hammer energy is required during some 
installations. The smaller 4 m pin piles for the OCS-DC jacket 
foundation were assumed to require 17,088 total strikes with hammer 
energy ranging from 300 to 4,000 kJ during the installation. 
Representative hammering schedules (Table 10), including increasing 
hammer energy with increasing penetration depth, were modeled for both 
foundation types because maximum sound levels usually occur during the 
last stage of impact pile driving, where the great resistance is 
typically encountered (Betke, 2008). Sediment types with greater 
resistance (e.g., gravel versus sand) require hammers that deliver 
higher energy strikes and/or an increased number of strikes relative to 
installations in softer sediment. The project area includes a 
predominantly sandy bottom habitat, which is a softer sediment and the 
model accounted for this. Additional details on modeling inputs and 
assumptions are described in Appendix A in Sunrise Wind's application.

[[Page 9036]]



                Table 10--Hammer Energy Schedules for Monopile and Jacket Foundation Installation
----------------------------------------------------------------------------------------------------------------
          WTG monopile foundations  (7/12-m diameter)               OCS-DC jacket foundations  (4-m diameter)
----------------------------------------------------------------------------------------------------------------
                      Hammer: IHC S-4000                                       Hammer: IHC S-4000
----------------------------------------------------------------------------------------------------------------
 Energy level (kilojoule, kJ)      Strike     Pile penetration    Energy level       Strike     Pile penetration
              \a\                  count         depth (m)       (kilojoule, kJ)     count           depth
----------------------------------------------------------------------------------------------------------------
1,000.........................        3,015               0-14  Assume pile self- ...........                0-4
                                                                 setting.
1,500.........................        2,140              14-24  300.............        1,336               4-12
2,000.........................        2,084              24-34  750.............        2,182              12-25
2,500.........................        1,843              34-43  1,000...........        4,437              25-43
3,2000........................        1,316              43-50  2,000...........        4,058              43-63
4,000 \a\.....................            1                 50  3,000...........        3,272              63-80
                                ...........  .................  4,000...........        1,803              80-90
                               --------------------------------                  -------------------------------
    Total.....................       10,398                 50     Total........       17,088                 90
----------------------------------------------------------------------------------------------------------------
\a\ Though not included in the exposure analysis, the 7/12 m monopile was additionally modeled at the highest
  hammer energy of 4,000 kJ, by considering just one strike at the maximum seabed penetration depth (50 m), and
  a penetration rate similar to that of the 3,200 kJ energy level, implying penetration to refusal. Results for
  the 4,000 kJ energy level are presented in Appendices G.1, G.2, and G.3 of the JASCO report (Kusel et al.,
  2022) for single-strike PK, SEL and SPL, respectively, since only one strike was considered.

    The proposed casing pipe would be installed at an angle towards the 
exiting drill using a pipe ramming method with a Grundoram pneumatic 
hammer. The source modeling assumed the parameters identified in Table 
11 while sound fields were modeled at one representative location along 
the SRWEC route near to the HDD exit pit locations (ID-01), which 
represents a location approximately 0.5 mi (800 m) offshore of the 
landfall site. The modeling used a winter sound speed profile and 
assumed up to 3 hours of pneumatic hammer use per day for 2 days to 
install each casing pipe. Assuming 180 strikes per minute over 3 hours 
of operations results in up to 32,400 total strikes per day.

  Table 11--Casing Pipe Installation Acoustic Modeling Assumptions and
                                 Inputs
------------------------------------------------------------------------
                Parameter                           Model input
------------------------------------------------------------------------
Hammer..................................  Grundoram Taurus (impact).
Impact Hammer Energy....................  18 kJ.
Strike Rate (min-1).....................  180.
Strikes Per Pile (and Per Day)..........  32,400.
Total Number of Casing Pipes............  1.
Maximum Piles Installed Per Day.........  0.5.
Pile Diameter...........................  1.2 m.
Pile Length.............................  137.16 m.
Pile Wall Thickness.....................  25.4 millimeter (mm).
Seabed Penetration......................  10 m.
Angle of Installation (Relative to        11-12 degrees.
 Horizontal).
------------------------------------------------------------------------

    For vibratory driving activities of the goal post sheet piles at 
the cable landfall site, source levels were modeled using decidecade 
band SEL levels obtained from vibratory pile driving measurements 
available in the literature (Illingworth & Rodkin 2017). The SEL band 
levels were corrected for spherical spreading (+20 dB, corresponding to 
10 m range) to generate a source level spectrum (K[uuml]sel et al. 
2022; Figure 2.2-2). These levels represent the sheet pile as a point 
source located in the middle of the water column. Assumptions 
associated with the source level modeling are found in Table 12.

     Table 12--Sheet Pile Installation Acoustic Modeling Assumptions
------------------------------------------------------------------------
                Parameter                           Model input
------------------------------------------------------------------------
Vibratory Hammer........................  APE 300.
Pile Type...............................  Sheet Piles.
Pile Length.............................  30 m.
Pile Width..............................  600 mm.
Pile Wall Thickness.....................  25 mm.
Seabed Penetration......................  10 m.
Time to Install One Pile................  2 hours.
Number of Piles Per Day.................  4.
Total Number of Piles...................  44.
------------------------------------------------------------------------


[[Page 9037]]

    Sounds fields produced during vibratory pile driving of goal post 
sheet piles were predicted by propagating measured spectra as a noise-
radiating point source in the middle of the water column using JASCO's 
Marine Operations Noise Model (MONM-BELLHOP; see Appendix E.3 of 
K[uuml]sel et al. 2022). At frequencies less than 2 kHz, MONM computes 
acoustic propagation via a wide-angle parabolic equation (PE) solution 
to the acoustic wave equation based on a version of the U.S. Naval 
Research Laboratory's Range-dependent Acoustic Model (RAM) modified to 
account for an elastic seabed. MONM-RAM incorporates bathymetry, 
underwater sound speed as a function of depth, and a geo-acoustic 
profile based on seafloor composition, and accounts for source 
horizontal directivity. The PE method has been extensively benchmarked 
and is widely employed in the underwater acoustics community, and MONM-
RAM's predictions have been validated against experimental data in 
several underwater acoustic measurement programs conducted by JASCO. At 
frequencies greater than 2 kHz, MONM accounts for increased sound 
attenuation due to volume absorption at higher frequencies with the 
widely used BELLHOP Gaussian beam ray-trace propagation model. This 
modeling component incorporates bathymetry and underwater sound speed 
as a function of depth with a simplified representation of the sea 
bottom, as sub-bottom layers have a negligible influence on the 
propagation of acoustic waves with frequencies above 1 kHz. MONM-
BELLHOP accounts for horizontal directivity of the source and vertical 
variation of the source beam pattern. Both FWAM and MONM-BELLHOP 
propagation models account for full exposure from a direct acoustic 
wave as well as exposure from acoustic wave reflections and refractions 
(i.e., multi-path arrivals at the receiver).

Animal Movement Modeling

    To estimate the probability of exposure of animals to sound above 
NMFS' harassment thresholds during foundation installation, JASCO's 
Animal Simulation Model Including Noise Exposure (JASMINE) was used to 
integrate the sound fields generated from the source and propagation 
models described above with species-typical behavioral parameters 
(e.g., dive patterns). Sound exposure models such as JASMINE use 
simulated animals (animats) to sample the predicted 3-D sound fields 
with movement rules derived from animal observations. Animats that 
exceed NMFS' acoustic thresholds are identified and the range for the 
exceedances determined. The output of the simulation is the exposure 
history for each animat within the simulation, and the combined history 
of all animats gives a probability density function of exposure during 
the project. The number of animals expected to exceed the regulatory 
thresholds is determined by scaling the probability of exposure by the 
species-specific density of animals in the area. By programming animats 
to behave like marine species that may be present near the SRWF, the 
sound fields are sampled in a manner similar to that expected for real 
animals. The parameters used for forecasting realistic behaviors (e.g., 
diving, foraging, and surface times) were determined and interpreted 
from marine species studies (e.g., tagging studies) where available, or 
reasonably extrapolated from related species (K[uuml]sel et al. 2022, 
Appendix I).
    Specifically, the sound level estimates are calculated from three-
dimensional sound fields and then, at each horizontal sampling range, 
the maximum received level that occurs within the water column is used 
as the received level at that range. These maximum-over-depth 
(Rmax) values are then compared to predetermined threshold 
levels to determine exposure and acoustic ranges to Level A harassment 
and Level B harassment threshold isopleths. However, the ranges to a 
threshold typically differ among radii from a source and also might not 
be continuous along a radii because sound levels may drop below 
threshold at some ranges and then exceed threshold at farther ranges. 
To minimize the influence of these inconsistencies, 5 percent of the 
farthest such footprints were excluded from the model data. The 
resulting range, R95percent, was chosen to identify the area 
over which marine mammals may be exposed above a given threshold 
because, regardless of the shape of the maximum-over-depth footprint, 
the predicted range encompasses at least 95 percent of the horizontal 
area that would be exposed to sound at or above the specified 
threshold. The difference between Rmax and 
R95percent depends on the source directivity and the 
heterogeneity of the acoustic environment. R95percent 
excludes ends of protruding areas or small isolated acoustic foci not 
representative of the nominal ensonified zone.
    As described in Section 2.8 of JASCO's acoustic modeling report for 
Sunrise Wind, for modeled animals that have received enough acoustic 
energy to exceed a given harassment threshold, the exposure range for 
each animal is defined as the closest point of approach (CPA) to the 
source made by that animal while it moved throughout the modeled sound 
field, accumulating received acoustic energy. The resulting exposure 
range for each species is the 95th percentile of the CPA distances for 
all animals that exceeded threshold levels for that species (termed the 
95 percent exposure range (ER95percent)). The 
ER95percent ranges are species-specific rather than 
categorized only by any functional hearing group, which allows for the 
incorporation of more species-specific biological parameters (e.g., 
dive durations, swim speeds, etc.) for assessing the impact ranges into 
the model. Furthermore, because these ER95percent ranges are 
species-specific, they can be used to develop mitigation monitoring or 
shutdown zones.
    We note that Sunrise Wind also calculated acoustic ranges, which 
represent the distance to a harassment threshold based on sound 
propagation through the environment (i.e., independent of any receiver) 
while exposure range considers received levels in consideration of how 
an animal moves through the environment which influences the duration 
of exposure. As described above, applying animal movement and behavior 
within the modeled noise fields allows for a more realistic indication 
of the distances at which PTS acoustic thresholds are reached that 
considers the accumulation of sound over different durations. The 
acoustic ranges to the SELcum Level A harassment thresholds 
for WTG and OCS-DC foundation installation can be found in Tables 15 
and 16 of Sunrise Wind's application but will not be discussed further 
in this analysis. Because NMFS Level B harassment threshold is an 
instantaneous exposure, acoustic ranges are more relevant to the 
analysis and are used to derive mitigation and monitoring measures. 
Acoustic ranges to the Level B harassment threshold for each activity 
are provided in the activity-specific subsections below.
    Sunrise Wind proposed five different construction schedules 
involving either consecutive (i.e, sequential) foundation installation 
(schedule 1-2) or concurrent foundation installation (i.e, schedules 3-
5) as described in the Dates and Duration section. JASMINE was run for 
a representative seven-day period for each scenario. Each of the five 
construction schedules includes a combination of scenarios that assume 
either fully sequential operations or a combination of sequential and 
concurrent operations. For each scenario, a subset of simulated sites 
was chosen to capture the range of acoustic variability across the 
lease area.

[[Page 9038]]

    For concurrent operations, different sites were modeled on each day 
of the simulation. For one monopile per day, 7 representative locations 
were selected in the lease area (one location for each day). Similarly, 
for two monopiles per day, 14 locations were selected, and 21 locations 
were selected for three monopiles per day. For jacket foundations, 7 
representative locations were chosen. Animats were exposed to only one 
sound field at a time. Received levels were summed over each animat's 
track over a 24-hour time window to derive sound exposure levels (SEL). 
Single-exposure metrics (e.g., SPL) were recorded at each simulation 
time step, and the maximum received level is reported. For each pile 
type and each exposure modeling location the closest modeled sound 
field was used.
    Concurrent operations were handled slightly differently to best 
capture the effects of installing piles spatially close to each other 
(proximal) or further apart (distal). The sites chosen for exposure 
modeling for concurrent operations were repeated each day for all seven 
days (see Figure 1.2-4 in Sunrise Wind's application). When simulating 
concurrent operations in JASMINE, sound fields from separate sources 
may be overlapping. For cumulative metrics (SEL), received energy from 
each source is summed over a 24-hour time window. For SPL, received 
levels are summed within each simulation time step and the resultant 
maximum SPL over all time steps is reported. Sources are summed such 
that receiving two equally loud sounds results in a 3 dB increase 
(incoherent summation). The installation schedules for concurrent 
scenarios are as follows:
     Construction Schedule 3 includes a concurrent scenario, 
simulating two vessels, each installing two monopiles per day. The 
first vessel installs both monopiles in the southeast corner of the 
lease area (purple circle markers). The second vessel installs both 
monopiles at the proximal location (light blue circle markers).
     Construction Schedule 4 also includes a concurrent 
scenario with two vessels installing two monopiles per day. In this 
case, the first vessel installs both monopiles in the southeast corner, 
while the second vessel installs both monopiles at the distal location 
(green circle markers).
     Construction Schedule 5 includes a concurrent scenario 
with two vessels, one installing two monopiles per day, and a second 
installing 4 jacket pin piles per day. In this case, the jacket 
foundation pin piles are installed at a single location (yellow square 
marker), while the monopile foundations are installed at two proximal 
locations (yellow circle markers).
    Whether sequential or concurrent operations are done, the resulting 
cumulative or maximum receive levels are then compared to the NMFS' 
thresholds criteria within each analysis period.

Marine Mammal Density and Occurrence

    In this section we provide the information about marine mammal 
presence, density, or group dynamics that will inform the take 
calculations for all activities. Sunrise Wind applied the Duke 
University Marine Geospatial Ecology Laboratory 2022 marine mammal 
habitat-based density models (https://seamap.env.duke.edu/models/Duke/EC/) to estimate take from WTG and OCS-DC foundation installation, 
casing pipe and goal post installation, UXO/MEC detonations, and site 
characterization surveys. On May 10, 2022 Sunrise Wind submitted their 
adequate and complete application; however, on June 20, 2022, the Duke 
Marine Geospatial Ecology Laboratory released a updated set of density 
models for all marine mammals along the East Coast of the United States 
(Roberts et al., 2016; Roberts and Halpin, 2022). Subsequently, Sunrise 
Wind provided revised take estimates based on the updated density 
models, where appropriate. Sunrise Wind also incorporated revisions 
(relative to the ITA application) to how the density data were selected 
from the model output for each activity based on discussions with NMFS. 
Specifically, the width of the perimeter around the activity area used 
to select density data is now based on the largest exposure range 
(typically the Level B harassment range) applicable to that activity 
and then rounded up to the nearest 5-km increment, (which reflects the 
spatial resolution of the Roberts and Halpin (2022) density models). 
For example, if the largest exposure range was 7.1 km, a 10-km 
perimeter around the lease area was created and used to calculate 
densities used in foundation installation take estimates. All 
information provided by Sunrise Wind since submission of their adequate 
and complete application is contained within the memo (referred to as 
the Updated Density and Take Estimation Memo) submitted to NMFS on 
December 15, 2022. The Updated Density and Take Estimation Memo is 
available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
    For some species and activities, observational data from Protected 
Species Observers (PSOs) aboard HRG and geotechnical (GT) survey 
vessels indicate that the density-based exposure estimates may be 
insufficient to account for the number of individuals of a species that 
may be encountered during the planned activities. PSO data from 
geophysical and geotechnical surveys conducted in the area surrounding 
the Sunrise Wind Lease Area and SWEC route from October 2018 through 
February 2021 (AIS-Inc., 2019; Bennett, 2021; Stevens et al., 2021; 
Stevens and Mills, 2021) were analyzed to determine the average number 
of individuals of each species observed per vessel day. For each 
species, the total number of individuals observed (including the 
``proportion of unidentified individuals'') was divided by the number 
of vessel days during which observations were conducted in 2018-2021 
HRG surveys (407 survey days) to calculate the number of individuals 
observed per vessel day, as shown in the final columns of Tables 7 and 
8 as found in the Updated Density and Take Estimation Memo.
    For other less-common species, the predicted densities from Roberts 
and Halpin (2022) are very low and the resulting density-based exposure 
estimate is less than a single animal or a typical group size for the 
species. In such cases, the mean group size was considered as an 
alternative to the density-based or PSO data-based take estimates to 
account for potential impacts on a group during an activity. Mean group 
sizes for each species were calculated from recent aerial and/or 
vessel-based surveys, as shown in Table 13. Additional detail regarding 
the density and occurrence as well as the methodology used to estimate 
take for specific activities is included in the activity-specific 
subsections below.

[[Page 9039]]



                                   Table 13--Mean Group Sizes of Species for Which Incidental Take Is Being Requested
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Marine mammal species                 Individuals        Sightings      Mean group size                  Information source
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *..............................                 3                 3               1.0  Palka et al. (2017).
    Fin whale *...............................               155                86               1.8  Kraus et al. (2016).
    Humpback whale............................               160                82               2.0  Kraus et al. (2016).
    Minke whale...............................               103                83               1.2  Kraus et al. (2016).
    North Atlantic right whale *..............               145                60               2.4  Kraus et al. (2016).
    Sei whale *...............................                41                25               1.6  Kraus et al. (2016).
Odontocetes:
    Atlantic spotted dolphin..................             1,335                46              29.0  Palka et al. (2017).
    Atlantic white-sided dolphin..............               223                 8              27.9  Kraus et al. (2016).
    Bottlenose dolphin........................               259                33               7.8  Kraus et al. (2016).
    Common dolphin............................             2,896                83              34.9  Kraus et al. (2016).
    Harbor porpoise...........................               121                45               2.7  Kraus et al. (2016).
    Pilot whales..............................               117                14               8.4  Kraus et al. (2016).
    Risso's dolphin...........................             1,215               224               5.4  Palka et al. (2017).
    Sperm whale *.............................               208               138               1.5  Palka et al. (2017).
Pinnipeds:
    Seals (harbor and gray)...................               201               144               1.4  Palka et al. (2017).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.

Alternative Density-Based Take Estimate Method

    In addition to conducting the JASMINE exposure modeling described 
above to estimate both Level A harassment and Level B harassment from 
foundation installation, Sunrise Wind estimated the potential for Level 
B harassment from foundation installation using a simplified ``static'' 
method wherein the take estimates are the product of density, 
ensonified area, and number of days of installation. Take estimates 
from landfall construction activities, HRG surveys, and UXOs/MECs 
detonations were also calculated based on the static method (animal 
movement modeling was not conducted for these activities).
    The ``static'' take estimates are calculated by multiplying the 
expected densities of marine mammals in the activity area(s) by the 
area of water likely to be ensonified above the NMFS defined threshold 
levels in a single day (24-hour period). For foundation installation, 
the maximum monthly density is multiplied by the total ensonified area 
(highest between summer or winter) for the first month of construction 
of WTG monopile installation. The second highest monthly density is 
multiplied by the total ensonified area (highest between summer or 
winter) for the second month of WTG monopile installation. Lastly, the 
maximum monthly density is multiplied by the total ensonified area for 
OCS-DC installation. These three values are then summed together to 
come up with the ``static'' take estimate value for all foundation 
installation. Total ensonified area is calculated by multiplying the 
single pile ensonified area by the total number of piles installed 
within the first and second month of construction. For example, if 56 
WTG monopiles were assumed to be installed during the month with the 
highest density (e.g., July) and 46 were installed in the month with 
the second highest density (e.g., August), the resulting equation would 
be:

max monthly density [July] x total ensonified area for first month 
[summer WTG monopile] + 2nd highest monthly density [August] x total 
ensonified area for the 2nd month [summer WTG monopile] + max monthly 
density [July] x total ensonified area for first month [summer OCS-DC] 
= Total ``static'' take estimate

    In some cases, the exposure estimates from the animal movement 
modeling methods described above directly informed the take estimates; 
in other cases, adjustments were made based on previously collected 
monitoring data or average group size as described above. In all cases, 
Sunrise Wind requested, and NMFS proposes to authorize, take based on 
the highest amount of exposures estimated from any given method.
    Below we present the distances to NMFS thresholds and take 
estimates associated with each activity as a result of exposure 
modeling (WTG and OCS-DC foundation installation) or the static method 
as described above.
WTG and OCS-DC Foundation Installation
    To complete the project, Sunrise proposed five total pile 
installation schedules, as construction schedules cannot be fully 
predicted due to uncontrollable environmental factors (e.g., weather) 
and installation schedules include variability (e.g., due to 
drivability). Table 14 demonstrates the assumptions in each scenario 
with regard to how piles are installed relative to each other as well 
as the amount of pile driving time (days) allocated to each month. As 
described previously,

                                        Table 14--Sunrise Wind's Five Potential Foundation Installation Schedules
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            1st highest species density     2nd highest species density
                                                      Foundation                                       month                           month
  Schedule  analyzed      Installation details         structure         Configuration   ---------------------------------------------------------------
                                                                                          Days of piling    Total piles   Days of piling    Total piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
Schedule 1............  Sequential operations;    OCS-DC............  Jacket pin pile, 4               2               8               0               0
                         assumptions for WTG                           per day.
                         (one vessel installing
                         two monopiles per day)
                         foundations and the OCS-
                         DC foundation.
                                                  WTG...............  Monopile, 2 per                 28              56              23              46
                                                                       day.

[[Page 9040]]

 
Schedule 2............  Sequential operations;    OCS-DC............  Jacket pin pile, 4               2               8               0               0
                         assumptions for WTG                           per day.
                         (one vessel installing
                         three monopiles per
                         day) foundations and
                         the OCS-DC foundation.
                                                  WTG...............  Monopile, 3 per                 28              84               6              18
                                                                       day.
Schedule 3............  Concurrent operations;    OCS-DC............  Jacket pin pile, 4               2               8               -               -
                         proximal assumptions                          per day.
                         for concurrent piling
                         of WTG (two vessels,
                         each installing two
                         monopiles per day)
                         foundations, and the
                         OCS-DC foundation.
                                                  WTG...............  2 vessels, each 2             25.5             102               -               -
                                                                       per day.
Schedule 4............  Concurrent operations;    OCS-DC............  Jacket pin pile, 4               2               8               -               -
                         distal assumptions for                        per day.
                         concurrent piling of
                         WTG (two vessels, each
                         installing two
                         monopiles per day)
                         foundations, and the
                         OCS-DC foundation.
                                                  WTG...............  2 vessels, each 2             25.5             102               -               -
                                                                       per day.
Schedule 5............  Concurrent operations;    OCS-DC & WTG......  Jacket pin pile, 4               2     8 (pin) + 4               0               0
                         proximal assumptions                          per day +                              (monopile)
                         for concurrent piling                         Monopile, 2 per
                         of WTG (one vessel                            day.
                         installing two
                         monopiles per day) and
                         the OCS-DC foundation
                         (one vessel installing
                         four pin piles per
                         day), and remaining WTG
                         foundations.
                                                  WTG...............  Monopile, 2 per                 28              60              21              42
                                                                       day.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Note: No specific installation Schedule was carried forward; however, the highest Level A and Level B exposure estimates produced from across all five
  installation Schedules was selected and summarized as the most conservative for analysis purposes, given uncertainty in the exact construction
  approach at this stage of the project.
- not applicable.

    Sunrise Wind assumed that a maximum of three (if consecutive 
installation) or four (if concurrent installation) WTG monopile 
foundations and four pin piles related to the jacket foundation for the 
OCS-DC may be driven in 24 hours. It is unlikely that this installation 
rate would be consistently possible throughout the SRWF construction 
phase, but this schedule was considered to have the greatest potential 
for Level A harassment (i.e., PTS) and was, therefore, carried forward 
into take estimation. Exposure ranges (ER95percent) to Level A SELcum 
thresholds resulting from animal exposure modeling assuming various 
consecutive pile installation scenarios and 10 dB of attenuation by a 
NAS are summarized in Table 15. In the event two installation vessels 
are able to work simultaneously, exposure ranges (ER95percent) to Level 
A SELcum thresholds from the three concurrent pile installation 
scenarios summarized in Section 6.3 and 10 dB of attenuation by a NAS 
are summarized in Table 16. Comparison of the results in Table 15 and 
Table 16 show that the scenario assuming consecutive installation of 2 
WTG monopiles per day (which assumes the piles are located close to 
each other) and concurrent installation of 4 WTG monopiles per day at 
distant locations yield very similar results. This makes logical sense 
because the close proximity of the two piles installed at each location 
in the concurrent scenario is very similar to the 2 piles installed in 
the consecutive installation scenario and animals are unlikely to occur 
in both locations in the concurrent scenarios when they are far apart. 
Exposure ranges from the ``Proximal'' concurrent installation scenario 
(assuming close distances between concurrent pile installations) are 
slightly greater than from the ``Distal'' concurrent installation 
scenario (assuming long distances between concurrent pile 
installations) reflecting the fact that animals may be exposed to 
slightly higher cumulative sound levels when concurrent pile 
installations occur close to each other.

[[Page 9041]]

[GRAPHIC] [TIFF OMITTED] TP10FE23.001


[[Page 9042]]


    As described previously, Sunrise Wind also modeled acoustic ranges 
to NMFS harassment thresholds. Because the Level B harassment threshold 
is instantaneous, the acoustic range to the 160dB thresholds is the 
more appropriate and conservative method used in this analysis 
(although NMFS notes the differences between the exposure ranges 
calculated assuming animal movement modeling and acoustic ranges are 
negligible). Table 17 presents the acoustic ranges resulting from 
JASCO's source and propagation models.

  Table 17--Acoustic Ranges (R95Percent) in km to the Level B, 160 dB re 1 [mu]Pa Sound Pressure Level (SPLrms)
    Threshold for Impact Pile Driving During 7/12 m WTG Monopile and OCS-DC Jacket Foundation Pin Pile (4 m)
           Installation Using an IHC S-4000 Hammer and Assuming 10 dB of Broadband Noise Attenuation.
----------------------------------------------------------------------------------------------------------------
                                                      Range
-----------------------------------------------------------------------------------------------------------------
   WTG monopile       WTG monopile                        OCS-DC jacket foundation (4,000 kJ)
foundation (3,200  foundation (4,000 ---------------------------------------------------------------------------
       kJ)                kJ)
-------------------------------------       Summer             Winter             Summer             Winter
      Summer             Winter
----------------------------------------------------------------------------------------------------------------
           6.07                6.5               6.49               6.97               6.47               6.63
----------------------------------------------------------------------------------------------------------------

    Sunrise Wind modeled potential Level A harassment and Level B 
harassment density-based exposure estimates for all five foundation 
installation scenarios: consecutive pile driving (Schedules 1 and 2) 
and concurrent pile driving (Schedules 3, 4, and 5). For both WTG 
monopile and OCS-DC jacket foundation installation, mean monthly 
densities for all species were calculated by first selecting density 
data from 5 x 5 km (3.1 x 3.1 mile) grid cells (Roberts et al., 2016; 
Roberts and Halpin, 2022) both within the Lease Area and out to 10 km 
(6.2 mi) from the perimeter of the Lease Area. This is a reduction from 
the 50 km (31 mi) perimeter used in the adequate & complete ITR 
application from May 2022. The relatively large area selected for 
density estimation encompasses and extends approximately to the largest 
estimated exposure acoustic range (ER95percent to the 
isopleth corresponding to Level B harassment, assuming 10 dB of noise 
attenuation) for all hearing groups using the unweighted threshold of 
160 dB re 1 [mu]Pa (rms). Please see Figure 11 in Sunrise Wind's 
Updated Density and Take Estimation Memo for an example of a density 
map showing the Roberts and Halpin (2022) density grid cells overlaid 
on a map of the SRWF.
    For monopile installation, the exposure calculations assumed 84 WTG 
monopiles would be installed in the highest density month and that the 
remaining 18 WTG monopiles would be installed within the second highest 
density month for each marine mammal species (excluding January-April). 
Sunrise Wind assumed that the OCS-DC jacket foundation would be 
installed in the month with the highest density for each species. Due 
to differences in the seasonal migration and occurrence patterns, the 
month selected for each species differs. Table 18 identifies the months 
and density values used in the exposure estimate models for foundation 
installation.

          Table 18--Maximum Average Monthly Marine Mammal Densities During Foundation Pile Installation
----------------------------------------------------------------------------------------------------------------
                              Maximum monthly (May-
                               December)  density    Maximum  density    2nd highest monthly      2nd highest
    Marine mammal species      (individual/km\2\)          month        density  (individual/    density month
                                                                               km\2\)
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *............                   N/A  Annual............                   N/A  Annual.
    Fin whale *.............                0.0043  July..............                 0.037  August.
    Humpback whale *........                0.0025  May...............                0.0024  June.
    Minke whale.............                0.0180  May...............                0.0137  June.
    North Atlantic right                    0.0018  May...............                0.0015  December.
     whale *.
    Sei whale *.............                0.0017  May...............                0.0007  November.
Odontocetes:
    Atlantic spotted dolphin                0.0030  October...........                0.0015  September.
    Atlantic white-sided                    0.0270  May...............                0.0234  June.
     dolphin.
    Bottlenose dolphin......                0.0162  August............                0.0160  July.
    Common dolphin..........                0.1816  September.........                0.1564  October.
    Harbor porpoise.........                0.0529  May...............                0.0451  December.
    Pilot whales............                0.0018  Annual............                0.0018  Annual.
    Risso's dolphin.........                0.0021  December..........                0.0010  November.
    Sperm whale *...........                0.0006  August............                0.0004  September.
Phocid (Pinnipeds):
    Seals (Harbor and Gray).                0.1712  May...............                0.1668  December.
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.

    For some species, modifications to the densities used were 
necessary; these are described here. The estimated monthly density of 
seals provided in Roberts and Halpin (2022) includes all seal species 
present in the region as a single guild. To split the resulting 
``seal'' density-based exposure estimate by species (harbor and gray 
seals), the estimate was multiplied by the proportion of the combined 
abundance attributable to each species. Specifically, the SAR 
Nbest

[[Page 9043]]

abundance estimates (Hayes et al., 2021) for the two species (gray seal 
= 27,300, harbor seal = 61,336; total = 88,636) were summed and divided 
the total by the estimate for each species to get the proportion of the 
total for each species (gray seal = 0.308; harbor seal = 0.692). The 
total estimated exposure from the pooled seal density provided by 
Roberts and Halpin (2022) was then multiplied by these proportions to 
get the species specific exposure estimates. Monthly densities were 
unavailable for pilot whales, so the annual mean density was used 
instead. The blue whale density was considered too low to be carried 
into exposure estimation so the amount of blue whale take that Sunrise 
Wind requests (see Estimated Take) is instead based on group size. 
Table 18 shows the first and second maximum average monthly densities 
by species that were incorporated in exposure modeling to obtain 
conservative exposure estimates.
    No single schedule resulted in the greatest amount of potential for 
injury or behavioral harassment. Sunrise Wind identified the following 
trends when looking across all construction schedules:
     Schedule 2 (consecutive installation) resulted in the 
highest number of Level B harassment exposures.
     Schedule 3 (concurrent proximal monopile installation) 
resulted in slightly higher Level A harassment exposures than 
sequential operations or other types of concurrent operations. This is 
likely because marine mammals would be exposed to two sources at the 
same moment and as one event rather than by two separate and distinct 
construction events.
     There were no SEL injury exposures at any attenuation 
level for any construction schedule.
     Harbor porpoise Level A harassment exposures were 
consistent regardless of the construction schedule.
     Schedule 3 tended to result in a reduced amount of take 
than other construction schedules for phocid pinnipeds.
     Construction Schedule 5 has similar results to 
Construction Schedule 1. These two schedules are almost identical 
except that the 2 days of sequential operations in Construction 
Schedule 1 would be replaced by 2 days of concurrent operations in 
Construction Schedule 5 while the remaining 28 days of operations would 
remain the same.
    As several of these schedules assume nearby concurrent operations, 
modeling efforts found that, because of the SEL metric used to evaluate 
PTS and the greater energy accumulated from multiple sources over a 
larger footprint, concurrent nearby operations may marginally increase 
the total number of injurious takes of marine mammals by PTS (Level A 
harassment) even though the number of days of operations goes down in 
these situations. Alternately, while the footprint ensonified above the 
behavioral harassment threshold by two concurrent installations may be 
larger than that of a single operation, because the behavioral 
harassment threshold is based on SPL and not accumulated energy, the 
number of behavioral disruptions of marine mammals (Level B harassment) 
are reduced when the number of days of pile driving is reduced. The 
fact that concurrent operations will likely result in the construction 
activities being completed in a shorter amount of time (fewer days), 
this is also considered a benefit, and more broadly, in the context of 
how repeated or longer total duration activities may impact marine 
mammals and their habitat.
    As described above, no single schedule was carried forward 
specifically for take estimates. Sunrise Wind compiled the maximum 
amount of take modeled for each species from each construction schedule 
to consider in their take estimates. Moreover, as described above, 
other factors influenced Sunrise Wind's take request. However, we note 
that final take estimates and the amount of take NMFS proposes to 
authorize, represent the maximum amount of take from any method 
considered (exposure modeling, static Level B harassment calculations 
(i.e., density x ensonified area x days of pile driving), PSO data, or 
group size. Tables 19 and 20 represent take estimates from all methods 
for consecutive and concurrent pile driving schedules. Table 19 
represents the highest amount of take from all methods and all 
schedules, which was used in the total take tables representing all 
activities presented later in this section.
    As previously discussed, only 94 WTG foundations would be 
permanently installed for the Sunrise Wind project; however, Sunrise 
Wind has considered the possibility that some piles may be started but 
not fully installed in some locations due to installation feasibility 
issues. Therefore, the take estimates reflect pile driving activities 
associated with 102 foundations to account for up to 8 piles that may 
be started but then re-driven at another position.

 Table 19--Consecutive Schedules--Estimated Level A and Level B Harassment Take From Installation of 102 WTG Monopile Foundations \a\ and 1 OCS-DC Piled
                                     Jacket Foundation Among Schedules 1 and 2, Assuming 10 dB of Noise Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Exposure modeling take
                                                                   estimate              Static Level B                                    Highest take
                 Marine mammal species                 --------------------------------  take estimates    PSO data take    Mean group      by Level B
                                                            Level A         Level B            \b\           estimates         size         harassment
                                                           (SPLcum)        (SPLrms)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *......................................             N/A             N/A               0.2  ..............             1.0               1
    Fin whale *.......................................            17.8            38.3              57.7            20.3             1.8              58
    Humpback whale *..................................            13.6            27.3              34.4            60.5             2.0              61
    Minke whale.......................................           114.6           354.6             237.0             7.4             1.2             355
    North Atlantic right whale *......................             7.8            21.1              24.5             1.8             2.4              25
    Sei whale *.......................................             6.0            16.3              20.8             0.5             1.6              21
Odontocetes:
    Atlantic spotted dolphin..........................             0.0             8.2              37.1  ..............            29.0              38
    Atlantic white-sided dolphin......................             0.0           533.3             363.0             5.9            27.9             534
    Bottlenose dolphin................................             0.0           237.6             222.0            66.0             7.8             238
    Common dolphin....................................             0.0         5,049.4           2,750.6         1,680.6            34.9           5,050
    Harbor porpoise...................................             3.9           631.2             726.2             1.7             2.7             727
    Pilot whales......................................             0.0            33.4              25.3  ..............             8.4              34
    Risso's dolphin...................................             0.0            28.5              25.8             4.6             5.4              29

[[Page 9044]]

 
    Sperm whale *.....................................             0.0             7.1               7.9  ..............             1.5               8
Phocid (Pinnipeds):
    Gray Seal.........................................             2.1           453.9             765.4             4.6             1.4             766
    Harbor Seal.......................................             7.5         1,261.7           1,719.7             5.9             1.4           1,720
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Only 94 WTG foundations would be installed but to account for up to 8 pilesthat may have to be re-installed at a different position, Sunrise Wind
  has estimated take from installation of 102 WTG foundations.
\b\ ``Static'' Level B take estimates are from the standard density x area x number of days method, not from exposure modeling.


 Table 20--Concurrent Schedules--Estimated Level A and Level B Harassment Take From Installation of 102 WTG Monopile Foundations \a\ and 1 OCS-DC Piled
                                   Jacket Foundation Among Schedules 3, 4, and 5, Assuming 10 dB of Noise Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Proximal WTG monopiles  (4   Distal WTG monopiles  (4   2 WTG monopiles and 4 OCS-    Maximum among all three
                                                  piles/day)                  piles/day)              DC jacket pin piles              schedules
                                         ---------------------------------------------------------------------------------------------------------------
          Marine mammal species              Level A       Level B       Level A       Level B       Level A       Level B       Level A       Level B
                                           harassment    harassment    harassment    harassment    harassment    harassment    harassment    harassment
                                            (SPLcum)      (SPLrms)      (SPLcum)      (SPLrms)      (SPLcum)      (SPLrms)      (SPLcum)      (SPLrms)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *........................           N/A           N/A           N/A           N/A           N/A           N/A           N/A           N/A
    Fin whale *.........................          18.9          33.2          18.5          37.1          18.7          37.7          18.9          37.7
    Humpback whale *....................          13.2          22.1          11.9          24.4          13.8          25.8          13.8          25.8
    Minke whale.........................         130.1         287.1         118.4         363.2         122.5         361.6         130.1         363.2
    North Atlantic right whale *........           8.4          16.8           8.3          21.8           7.3          20.1           8.4          21.8
    Sei whale *.........................           6.6          14.7           6.6          17.4           6.3          17.5           6.6          17.5
Odontocetes:
    Atlantic spotted dolphin............           0.0          18.9           0.0          18.2           0.0          10.2           0.0          18.9
    Atlantic white-sided dolphin........           0.0         421.6           0.0         537.0           0.0         522.7           0.0         537.0
    Bottlenose dolphin..................           0.0         191.5           0.0         226.3           0.0         233.0           0.0         233.0
    Common dolphin......................           0.0       4,109.4           0.0       5,151.1           0.0       5,196.9           0.0       5,196.9
    Harbor porpoise.....................           3.9         522.5           3.9         628.1           4.0         621.1           4.0         628.1
    Pilot whales........................           0.0          26.5           0.0          33.0           0.0          32.5           0.0          33.0
    Risso's dolphin.....................           0.0          23.7           0.0          31.4           0.0          29.8           0.0          31.4
    Sperm whale *.......................           0.0           5.8           0.0           6.9           0.0           7.1           0.0           7.1
Phocid (Pinnipeds):
    Gray Seal...........................           1.6         354.1           2.0         409.9           1.7         416.6           2.0         416.6
    Harbor Seal.........................           6.9       1,068.9           8.7       1,238.2           7.8       1,157.5           8.7       1,238.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Only 94 WTG foundations would be installed but to account for up to 8 pilesthat may have to be re-installed at a different position, Sunrise Wind
  has estimated take from installation of 102 WTG foundations.

    Table 21 presents the maximum amount exposures among all five 
schedule modeled (see K[uuml]sel et al., 2022 for exposure estimates 
for each schedule), results from a static approach to calculate Level B 
harassment take, other available data to consider (mean group size and 
PSO data), and importantly, the amount of take Sunrise Wind requested 
and NMFS proposes to authorize incidental to installing WTG and OCS-DC 
foundations. NMFS notes that in its application, Sunrise Wind requested 
take by Level A harassment for humpback whales only as this was based 
on the largest predicted exposure range for this specific species. 
However, the new Roberts and Halpin (2022) density estimates resulted 
in Level A harassment takes for other marine mammal species' (i.e., fin 
whale, humpback whale, minke whale, sei whale, harbor porpoise, gray 
seal, harbor seal) during foundation installation, which led to a 
reevaluation of how Level A harassment takes were determined during the 
foundation installation associated with the Sunrise Wind proposed 
project. As it is possible for some animals to occur within the 
relevant distances for durations long enough to result in Level A 
harassment, additional take was evaluated and requested. Although 
Sunrise Wind expects that most species will temporarily avoid the area 
during the foundation installation activities, and in combination with 
the proposed mitigation and monitoring measures, the potential for 
Level A harassment is very low. However, there may be some situations 
where pile driving cannot be stopped due to safety concerns related to 
pile instability. To estimate the potential for PTS, Sunrise Wind 
assumed that some animals may go undetected near the outer perimeter of 
the largest modeled exposure range (approximately within 500 m). Given 
the area of the water is represented by a band that is around 500-m 
wide on the inside of the modeled exposure ranges, it was estimated 
that this made up approximately 20 to 25 percent of the total area of 
the exposure range. Because of these reasons, Sunrise Wind evaluated 
that up to 20 percent of the model-predicted Level A harassment take 
(except North Atlantic right whales) could occur. Therefore, Sunrise 
Wind requested and NMFS proposed to authorize, take in the amount of 20 
percent of the modeled PTS exposures

[[Page 9045]]

for each species. However, due to the enhanced mitigation measures for 
North Atlantic right whales (see Proposed Mitigation section), no Level 
A harassment takes are requested for this species nor is NMFS proposing 
to authorize any.
    Per Sunrise Wind's estimated schedule, it is anticipated that all 
foundations would be installed in Year 1; therefore, Table 21 
represents the maximum amount of take that would occur in any given 
year from foundation installation; however, NMFS notes construction 
schedules may shift.

 Table 21--Maximum Estimated Amount of Level A Harassment and Level B Harassment Take From Installation of 102 WTG Monopile Foundations \a\ and 1 OCS-DC
                                  Piled Jacket Foundation Among All Five Schedules, Assuming 10 dB of Noise Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Exposure modeling  take
                                                     estimate             Static level B
          Marine mammal species          -------------------------------- take estimates   PSO data take    Mean group    Proposed level  Proposed level
                                              Level A         Level B           \b\          estimates         size           A take          B take
                                              (SPLcum        (SPLrms)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *........................             n/a             n/a             0.2  ..............             1.0  ..............               1
    Fin whale *.........................            18.9            37.7            59.3            20.3             1.8               4              60
    Humpback whale *....................            13.8            25.8            34.8            60.5             2.0               3              61
    Minke whale.........................           130.1           363.2           247.1             7.4             1.2              27             364
    North Atlantic right whale *........             8.4            21.8            24.6             1.8             2.4               0              25
    Sei whale *.........................             6.6            17.5            23.3             0.5             1.6               2              24
Odontocetes:
    Atlantic spotted dolphin............             0.0            18.9            40.6  ..............            29.0               0              41
    Atlantic white-sided dolphin........             0.0           537.0           371.7             5.9            27.9               0             537
    Bottlenose dolphin..................             0.0           237.6           222.4            66.0             7.8               0             238
    Common dolphin......................             0.0         5,196.9         2,876.9         1,680.6            34.9               0           5,197
    Harbor porpoise.....................             4.0           628.1           728.5             1.7             2.7               1             729
    Pilot whales........................             0.0            33.4            25.3  ..............             8.4               0              34
    Risso's dolphin.....................             0.0            31.4            28.5             4.6             5.4               0              32
    Sperm whale *.......................             0.0             7.1             8.4  ..............             1.5               0               9
Phocid (Pinnipeds):
    Gray Seal...........................             2.0           449.8           765.4             4.6             1.4               1             766
    Harbor Seal.........................             8.7         1,242.1         1,719.7             5.9             1.4               2           1,720
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Only 94 WTG foundations would be installed but to account for up to 8 pilesthat may have to be re-installed at a different position, Sunrise Wind
  has estimated take from installation of 102 WTG foundations.
\b\ ``Static'' Level B take estimates are from the standard density x area x number of days method, not from exposure modeling.

Export Cable Landfall Construction
    We previously described Sunrise Wind's acoustic modeling 
methodologies and identified that Sunrise Wind applied the static 
method to estimate take (i.e, no exposure modeling was conducted for 
cable landfall construction work). Here, we present the results from 
that modeling. Table 22 identifies the modeled acoustic ranges to the 
PTS (SELcum) thresholds from impact pile driving (via 
pneumatic hammering) of the casing pipe. Level A harassment 
(SPLpk) thresholds were not exceeded in the model and 
therefore, will not be discussed further. The modeled Level B 
harassment threshold distance is 920 m (Table 22).
    Modeled distances to PTS thresholds are larger than distances to 
the Level B harassment threshold due to the high strike rate of the 
pneumatic hammer (Table 22). However, low-frequency cetaceans are not 
expected to occur frequently close to this nearshore site and 
individuals of any species (including seals) are not expected to remain 
within the estimated SELcum threshold distances for the 
entire 3-hour duration of piling in a day. Furthermore, with the 
implementation of planned monitoring and mitigation (see Proposed 
Mitigation and Monitoring section), the potential for PTS incidental to 
pneumatic hammering is not anticipated. Sunrise Wind did not request 
nor is NMFS proposing to authorize Level A harassment incidental to 
installation of the casing pipe.

 Table 22--Acoustic Ranges (R95percent) in Meters to Level A Harassment
 (PTS) and Level B Harassment Thresholds From Impact Pile Driving During
  Casing Pipe Installation for Marine Mammal Functional Hearing Groups,
                  Assuming A Winter Sound Speed Profile
------------------------------------------------------------------------
                                             R95percent (m)
                              ------------------------------------------
                                Level A harassment    Level B harassment
 Marine mammal hearing group     SELcum thresholds     SPLrms threshold
                                     (dB re 1            (120 dB re 1
                               [micro]Pa2[middot]s)       [micro]Pa)
------------------------------------------------------------------------
Low-frequency cetaceans......                 3,870                  920
Mid-frequency cetaceans......                   230  ...................
High-frequency cetaceans.....                 3,950  ...................
Phocid pinnipeds.............                 1,290  ...................
------------------------------------------------------------------------

    Each casing pipe would be supported by six goal posts to allow the 
borehole exit point to remain clear of mud. Each goal post would be 
supported by two vertical sheet piles (a total of 12 sheet piles) that 
would be installed using a vibratory hammer (i.e., an American 
Piledriving Equipment model 300 or similar),with a potential for up to 
10 additional sheet piles being installed to support ongoing 
construction activities (a total of 22 sheet piles). Sunrise Wind

[[Page 9046]]

anticipates installing the 22 sheet piles over 6 days (approximately 
four piles per day). Each sheet pile would take up to 2 hours to 
install for a total of 8 hours per day. Removal timelines would be 
similar (up to six days total), equating to a total of 12 days for both 
installation and removal.
    Similar to the modeling approach for impact pile driving, distances 
to harassment thresholds are reported as R95percent values 
(Table 23). Given the nature of vibratory pile driving and the very 
small distances to Level A harassment thresholds (5-190 m), which 
accounts for eight hours of vibratory pile driving per day, vibratory 
driving is not expected to result in Level A harassment. Sunrise Wind 
did not request nor is NMFS proposing to authorize any Level A 
harassment incidental to installation or removal of sheet piles.

 Table 23--Acoustic Ranges (R95percent) in Meters to Level A Harassment
   (PTS) and Level B Harassment Thresholds From Vibratory Pile Driving
   During Sheet Pile Installation For Marine Mammal Functional Hearing
              Groups, Assuming A Winter Sound Speed Profile
------------------------------------------------------------------------
                                             R95percent (m)
                              ------------------------------------------
                                Level A harassment    Level B harassment
 Marine mammal hearing group     SELcum thresholds     SPLrms threshold
                                     (dB re 1            (120 dB re 1
                               [micro]Pa2[middot]s)       [micro]Pa)
------------------------------------------------------------------------
Low-frequency cetaceans......                    50                9,740
Mid-frequency cetaceans......  ....................  ...................
High-frequency cetaceans.....                   190  ...................
Phocid pinnipeds.............                    10  ...................
------------------------------------------------------------------------

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

Ensonified Area = pi x r2,

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

    Based on the duration of both the installation/removal of the sheet 
piles and the casing pipe, different daily ensonified values are 
necessary to pull into this calculation for the cable landfall take 
analysis. For the vibratory pile driving associated with the sheet pile 
installation and removal, it was assumed that the daily ensonified area 
was 149 km\2\ (57.53 mi\2\) or a total ensonified area of 1,788 km\2\ 
(1,111 mi\2\). For impact pile driving associated with the casing pipe 
by the pneumatic hammer, it was assumed that the daily ensonified area 
was 0.92 km\2\ (0.36 mi\2\) with a total ensonified area of 10.6 km\2\ 
(6.58 mi\2\) to result.
    To estimate marine mammal density around the nearshore landfall 
site, the greatest ensonified area plus a 10-km buffer was then 
intersected with the density grid cells for each individual species to 
select all of those grid cells that the buffer intersects (Figure 10 in 
Sunrise Wind's Updated Density and Take Estimation Memo). Since the 
timing of landfall construction activities may vary somewhat from the 
proposed schedule, the highest average monthly density from January 
through December for each species was selected and used to estimate 
exposures from landfall construction (Table 24).
    For some species where little density information is available 
(i.e., blue whales, pilot whales), the annual density was used instead. 
Given overlap with the pinniped density models as the Roberts and 
Halpin (2022) dataset does not distinguish between species, a 
collective ``pinniped'' density was used and then split based on the 
relative abundance for each species for the estimated take (Roberts et 
al., 2016). These approaches were the same as described in the WTG and 
OCS-DC Foundation Installation section.

  Table 24--Maximum Average Monthly Marine Mammal Densities in and Near The Landfall Location and the Month in
                                        Which Each Maximum Density Occurs
----------------------------------------------------------------------------------------------------------------
                                                  Maximum monthly
             Marine mammal species                    density                   Maximum density month
                                                (individual/km\2\)
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *..............................               0.000  Annual.
    Fin whale *...............................              0.0013  January.
    Humpback whale *..........................              0.0016  December.
    Minke whale...............................              0.0072  May.
    North Atlantic right whale *..............              0.0009  February.
    Sei whale *...............................              0.0006  December.
Odontocetes:
    Atlantic Spotted Dolphin..................               0.000  September.
    Atlantic White-sided Dolphin..............              0.0040  May.
    Bottlenose Dolphin........................              0.0540  July.
    Common Dolphin............................              0.0336  November.
    Harbor Porpoise...........................              0.0384  January.
    Pilot Whales..............................              0.0000  Annual.
    Risso's Dolphin...........................              0.0001  December.
    Sperm Whale *.............................              0.0002  November.
Phocid (Pinnipeds):
    Seals (Harbor and Gray)...................              0.3789  June.
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.


[[Page 9047]]

    To calculate exposures, the average marine mammal densities from 
Table 24 were multiplied by the daily ensonified area (149 km\2\) for 
installation/removal of sheet piles and for the installation/removal of 
the casing pipe (0.92 km\2\). Given that use of the vibratory hammer 
during sheet pile installation and removal may occur on up to 12 days, 
the daily estimated take (which is the product of density x ensonified 
area) was multiplied by 12 to produce the results shown in Table 25. 
The same approach was undertaken for the use of the pneumatic hammer 
for the casing pipe with the exception that the 8 total days was used.
    To be conservative, Sunrise Wind has requested take by Level B 
harassment based on the highest exposures predicted by the density-
based, PSO based, or average group size-based estimates, and the take 
proposed for authorization is indicated in the last column of Table 25. 
As described above, given the small distances to Level A harassment 
isopleths, Level A harassment incidental to this activity is not 
anticipated, even absent mitigation, although mitigation measures are 
proposed that would further reduce the risk. Therefore, Sunrise Wind is 
not requesting and NMFS is not proposing to authorize Level A 
harassment related to cable landfall construction activities.

                                      Table 25--Estimate Level B Harassment From Export Cable Landfall Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Density-based take estimate   Total density-
                  Marine mammal species                  --------------------------------   based take     PSO data take    Mean group     Highest level
                                                            Sheet piles     Casing pipe      estimate        estimate          size           B takes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *........................................             0.0             0.0             0.0  ..............             1.0               1
    Fin whale...........................................             2.3             0.0             2.3             3.1             1.8               4
    Humpback whale......................................             2.8             0.0             2.9             9.3             2.0              10
    Minke whale.........................................            12.8             0.1            12.9             1.1             1.2              13
    North Atlantic right whale *........................             1.7             0.0             1.7             0.3             2.4               3
    Sei whale *.........................................             1.0             0.0             1.0             0.1             1.6               2
Odontocetes:
    Atlantic spotted dolphin............................             0.1             0.0             0.1  ..............            29.0              29
    Atlantic white-sided dolphin........................             7.2             0.0             7.2             0.9            27.9              28
    Bottlenose dolphin..................................            96.6             0.6            97.2            10.2             7.8              98
    Common dolphin......................................            60.0             0.4            60.4           258.5            34.9             259
    Harbor porpoise.....................................            68.7             0.4            69.1             0.3             2.7              70
    Pilot whales........................................             0.0             0.0             0.0  ..............             8.4               9
    Risso's dolphin.....................................             0.2             0.0             0.2             0.7             5.4               6
    Sperm whale *.......................................             0.3             0.0             0.3  ..............             1.5               2
Phocid (Pinnipeds):
    Gray Seal...........................................           208.7             1.2           209.9             0.7             1.4             210
    Harbor Seal.........................................           468.9             2.8           471.7             0.9             1.4             472
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.

UXO/MEC Detonation
    Sunrise Wind may detonate up to three UXO/MECs within the project's 
Lease Area over the 5-year effective period of the proposed rule. 
Charge weights of 2.3 kgs, 9.1 kgs, 45.5 kgs, 227 kgs, and 454 kgs, 
were modeled to determine acoustic ranges to mortality, 
gastrointestinal injury, lung injury, PTS, and TTS thresholds. To do 
this, the source pressure function used for estimating peak pressure 
level and impulse metrics was calculated with an empirical model that 
approximates the rapid conversion of solid explosive to gaseous form in 
a small bubble under high pressure, followed by exponential pressure 
decay as that bubble expands (Hannay and Zykov, 2022). This initial 
empirical model is only valid close to the source (within tens of 
meters), so alternative formulas were used beyond those distances to a 
point where the sound pressure decay with range transitions to the 
spherical spreading model. The SEL thresholds occur at distances of 
many water depths in the relatively shallow waters of the Project 
(Hannay and Zykov, 2022). As a result, the sound field becomes 
increasingly influenced by the contributions of sound energy reflected 
from the sea surface and sea bottom multiples times. To account for 
this, propagation modeling was carried out in decidecade frequency 
bands using JASCO's MONM, as described in the WTG and OCS-DC Foundation 
Installation section above. This model applies a parabolic equation 
approach for frequencies below 4 kHz and a Gaussian beam ray trace 
model at higher frequencies (Hannay and Zykov, 2022). In Sunrise Wind 
project's location, sound speed profiles generally change little with 
depth, so these environments do not have strong seasonal dependence 
(see Figure 2 in the Sunrise Wind Underwater Acoustic Modeling of UXO/
MEC report on NMFS' website). The propagation modeling for UXO/MEC 
detonations was performed using an average sound speed profile for 
``September'', which is representative of the most likely time of year 
UXO/MEC detonation activities would occur for Sunrise Wind's proposed 
action in the Lease Area. Please see the supplementary report for 
Sunrise Wind's ITA application titled ``Underwater Acoustic Modeling of 
Detonations of Unexploded Ordnance (UXO) for Orsted Wind Farm 
Construction, US East Coast'', as found on NMFS' website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind) for more technical 
details about the modeling methods, assumptions and environmental 
parameters used as inputs (Hannay and Zykov, 2022).
    The exact type and net explosive weight of UXO/MECs that may be 
detonated are not known at this time; however, they are likely to fall 
into one of the bins identified in Table 26. To capture a range of 
potential UXO/MECs, five categories or ``bins'' of net explosive 
weight, as established by the U.S. Navy (2017a), were selected for 
acoustic modeling (Table 26).

[[Page 9048]]



    Table 26--Navy ``Bins'' and Corresponding Maximum Charge Weights
                        (Equivalent TNT) Modeled
------------------------------------------------------------------------
                                              Maximum
          Navy bin designation              equivalent     Weight (TNT)
                                               (kg)            (lbs)
------------------------------------------------------------------------
E4......................................             2.3               5
E6......................................             9.1              20
E8......................................            45.5             100
E10.....................................             227             500
E12.....................................             454           1,000
------------------------------------------------------------------------

    These charge weights were modeled at four different locations off 
Rhode Island, consisting of different depths, including: 12 m (Site 
S1), 20 m (Site S2), 30 m (Site S3), and 45 m (Site S4). Sites S3 (30 m 
depth) and S4 (45 m depth) were deemed to be representative of the 
Sunrise Wind Lease Area where detonations could occur (see Figure 1 in 
Hannay and Zykov, 2022).
    All distances to isopleths modeled can be found in Hannay and Zykov 
(2022). It is not currently known how easily Sunrise Wind would be able 
to identify the size and charge weights of UXOs/MECs in the field. 
Therefore, NMFS has proposed to require Sunrise Wind to implement 
mitigation measures assuming the largest E12 charge weight as a 
conservative approach. As such, distances to PTS and TTS thresholds for 
only the 454 kg UXO/MEC is presented in Table 27 and 28, respectively, 
as this size UXO has the greatest potential for these impacts and is 
what is used to estimate take. NMFS notes that it is extremely unlikely 
that all three of the UXO/MECs found and needed to be detonated for the 
Sunrise Wind project would consist of this 454 kg charge weight. If 
Sunrise Wind is able to reliably demonstrate that they can easily and 
accurately identify charge weights in the field, NMFS will consider 
mitigation and monitoring zones based on UXO/MEC charge weight for the 
final rulemaking rather than assuming the largest charge weight in 
every situation.
    To further reduce impacts to marine mammals, Sunrise Wind would 
deploy a noise attenuation system during detonation events similar to 
that described for monopile installation and expects that this system 
would be able to achieve 10 dB attenuation. This expectation is based 
on an assessment of UXO/MEC clearance activities in European waters as 
summarized by Bellman and Betke (2021). Because Sunrise Wind committed 
to using a noise abatement system during any UXO/MEC denotation event, 
attenuated acoustic ranges were applied to the take estimates.
    Given the impact zone sizes and the required mitigation and 
monitoring measures, neither mortality nor non-auditory injury are 
considered likely to result from the activity. NMFS preliminarily 
concurs with Sunrise Wind's analysis and does not expect or propose to 
authorize any non-auditory injury, serious injury, or mortality of 
marine mammals from UXO/MEC detonation. The modeled distances, assuming 
10 dB of sound attenuation, to the mortality threshold for all UXO/MECs 
sizes for all animal masses are small (i.e., 5-353 m; see Tables 35-38 
in Sunrise Wind's supplemental UXO/MEC modeling report; Hannay and 
Zykov, 2022), as compared to the distance/area that can be effectively 
monitored. The modeled distances to non-auditory injury thresholds 
range from 5-648 m, assuming 10 dB of sound attenuation (see Tables 30-
34 in Sunrise Wind's supplemental UXO/MEC modeling report; Hannay and 
Zykov, 2022). Sunrise Wind would be required to conduct extensive 
monitoring using both PSOs and PAM operators and clear an area of 
marine mammals prior to any detonation of UXOs/MECs. Given that Sunrise 
Wind would be employing multiple platforms to visually monitor marine 
mammals as well as passive acoustic monitoring, it is reasonable to 
assume that marine mammals would be reliably detected within 
approximately 660 m of the UXO/MEC being detonated, the potential for 
mortality or non-auditory injury is de minimis.
    Sunrise Wind did not request and NMFS is not proposing to authorize 
take by mortality or non-auditory injury. For this reason, we are not 
presenting all modeling results here; however, they can be found in 
Sunrise Wind's UXO/MEC acoustic modeling report (Hannay and Zykov, 
2022).
    To estimate the maximum ensonified zones that could result from 
UXO/MEC detonations, the largest acoustic range (R95percent; 
assuming 10dB attenuation) to PTS and TTS thresholds of a E12 UXO/MEC 
charge weight were used as radii to calculate the area of a circle (pi 
x r\2\; where r is the range to the threshold level) for each marine 
mammal hearing group. The results represent the largest area 
potentially ensonified above threshold levels from a single detonation 
within the Sunrise Wind Lease Area (Tables 27 and 28).

 Table 27--Largest SEL-Based R95percent PTS-Onset Ranges (in Meters) Site S3 (Lease Area) Modeled During UXO/MEC
                                   Detonation, Assuming 10 dB Sound Reduction
----------------------------------------------------------------------------------------------------------------
                                                                   Distance (m) to PTS threshold
                                       Representative site used   during E12 (454 kg) detonation      Maximum
    Marine mammal hearing group              for modeling        --------------------------------   ensonified
                                                                       Rmax         R95percent     zone (km\2\)
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans............  Site S3....................           3,900           3,610            40.9
Mid-frequency cetaceans............  Site S3....................             484             412            0.53
High-frequency cetaceans...........  Site S3....................           6,840           6,190            12.0
Phocid pinnipeds (in water)........  Site S3....................           1,600           1,480            6.88
----------------------------------------------------------------------------------------------------------------


[[Page 9049]]


Table 28--Largest SEL-Based R95percent TTS-onset Ranges (in Meters) From Site S4 (Lease Area) Modeled During UXO/
                                 MEC Detonation, Assuming 10 dB Sound Reduction
----------------------------------------------------------------------------------------------------------------
                                                                   Distance (m) to TTS threshold
                                       Representative site used   during E12 (454 kg) detonation      Maximum
    Marine mammal hearing group              for modeling        --------------------------------   ensonified
                                                                       Rmax         R95percent     zone (km\2\)
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans............  Site S4....................          13,500          11,800             437
Mid-frequency cetaceans............  Site S4....................           2,730           2,480            19.3
High-frequency cetaceans...........  Site S4....................          15,600          13,700             589
Phocid pinnipeds (in water)........  Site S4....................           7,820           7,020             155
----------------------------------------------------------------------------------------------------------------

    Regarding the marine mammal density and occurrence data used in the 
take estimates for UXO/MECs, to avoid any in situ detonations of UXO/
MECs during periods when North Atlantic right whale densities are 
highest in and near the SWEC corridor and Lease Area, Sunrise Wind has 
opted for a seasonal temporal restriction to not detonate in Federal 
waters from December 1 through April 30 annually. Accordingly, for each 
species they selected the highest average monthly marine mammal density 
between May and November from Roberts and Halpin (2022) to 
conservatively estimate exposures from UXO/MEC detonation for a given 
species in any given year (i.e., assumed all three UXO/MECs would be 
detonated in the month with the greatest average monthly density). 
Furthermore, given that UXOs/MECs detonations have the potential to 
occur anywhere within the Lease Area, a 10 km (6.21 mi) perimeter was 
applied around the Lease Area. In some cases where monthly densities 
were unavailable, annual densities were used instead for some species 
(i.e., blue whales, pilot whale spp.).
    Table 29 provides those densities and the associated months in 
which the species-specific densities are highest for the Sunrise Wind 
Lease Area.

 Table 29--Maximum Average Monthly Marine Mammal Densities (Individuals/km\2\) Within 10 km of the Sunrise Wind
        Wind Farm Lease Area From May Through November, and the Month in Which the Maximum Density Occurs
----------------------------------------------------------------------------------------------------------------
                                                  Maximum average
             Marine mammal species                monthly density               Maximum density month
                                                (individual/km\2\)
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *..............................              0.0000  Annual.
    Fin whale *...............................              0.0042  July.
    Humpback whale............................              0.0025  May.
    Minke whale...............................              0.0178  May.
    North Atlantic right whale *..............              0.0018  May.
    Sei whale *...............................              0.0017  May.
Odontocetes:
    Atlantic spotted dolphin..................              0.0033  October.
    Atlantic white-sided dolphin..............              0.0268  May.
    Bottlenose dolphin........................              0.0160  August.
    Common dolphin............................              0.1824  September.
    Harbor porpoise...........................              0.0517  May.
    Pilot whales..............................              0.0018  Annual.
    Risso's dolphin...........................              0.0020  December.
    Sperm whale *.............................              0.0006  August.
Phocid Pinnipeds:
    Seals (Harbor and Gray)...................              0.1730  May.
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.

    To estimate take incidental to UXO/MEC detonations in the Sunrise 
Wind Lease Area, the maximum ensonified areas based on the largest 
R95percent to Level A harassment (PTS) and Level B 
harassment (TTS) thresholds (assuming 10 dB attenuation) from a single 
detonation (assuming the largest UXO/MEC charge weight) in the Lease 
Area, as shown in Tables 27 and 28, were multiplied by three (the 
maximum number of UXOs/MECs that are expected to be detonated in the 
Sunrise Wind Lease Area) and then multiplied by the marine mammal 
densities shown in Table 29, resulting in the take estimates in Table 
30. As described above, Sunrise Wind based the amount of requested take 
on the number of exposures estimated assuming 10 dB attenuation using a 
NAS because they believe consistent, successful implementation of this 
mitigation measure would be possible.
    As shown below in Table 30, the likelihood of marine mammal 
exposures above the PTS threshold is low, especially considering the 
instantaneous nature of the acoustic signal and the fact that there 
will be no more than three. Further, Sunrise Wind has proposed 
mitigation and monitoring measures intended to avoid the potential for 
PTS for most marine mammal species, and the extent and severity of 
Level B harassment (see Proposed Mitigation and Proposed Monitoring and 
Reporting sections below). However, given the relatively large 
distances to the high-frequency cetacean Level A harassment (PTS, 
SELcum) isopleth applicable to harbor porpoises and the 
difficulty

[[Page 9050]]

detecting this species at sea, Sunrise Wind is requesting and NMFS is 
proposing to authorize 19 Level A harassment takes of harbor porpoise 
from UXO/MEC detonations. Similarly, seals are difficult to detect at 
longer ranges, and although the distance to the phocid hearing group 
SEL PTS threshold is not as large as those for high-frequency 
cetaceans, it may not be possible to detect all seals within the PTS 
threshold distances even with the proposed monitoring measures. 
Therefore, Sunrise Wind requested and NMFS is proposing to authorize 
take by Level A harassment of 2 gray seals and 3 harbor seals 
incidental to UXO/MEC detonation.

     Table 30--Estimated Level A Harassment (PTS) and Level B Harassment (TTS, Behavior) Takes Proposed To Be Authorized From All Potential UXO/MEC
                                      Detonations \1\ Assuming 10 dB Noise Attenuation for the Sunrise Wind Project
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Total Level A   Total Level B
                  Marine mammal species                    density-based   density-based   PSO data take    Mean group       Requested       Requested
                                                           take estimate   take estimate     estimate          size        Level A take    Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *........................................             0.0             0.0  ..............             1.0               0               1
    Fin whale *.........................................             0.5             5.5             0.6             1.8               0               6
    Humpback whale......................................             0.3             3.3             1.7             2.0               0               4
    Minke whale.........................................             2.2            23.4             0.2             1.2               0              24
    North Atlantic right whale *........................             0.2             2.3             0.1             2.4               0               3
    Sei whale *.........................................             0.2             2.2             0.0             1.6               0               3
Odontocetes:
    Atlantic spotted dolphin............................             0.0             0.2  ..............            29.0               0              29
    Atlantic white-sided dolphin........................             0.0             1.6             0.2            27.9               0              28
    Bottlenose dolphin..................................             0.0             0.9             1.9             7.8               0               8
    Common dolphin......................................             0.3            10.6            48.5            34.9               0              49
    Harbor porpoise.....................................            18.7            91.4             0.0             2.7              19              92
    Pilot whales........................................             0.0             0.1  ..............             8.4               0               9
    Risso's dolphin.....................................             0.0             0.1             0.1             5.4               0               6
    Sperm whale *.......................................             0.0             0.0  ..............             1.5               0               2
Phocid Pinnipeds:
    Gray seal...........................................             1.1            24.8             0.1             0.4               2              25
    Harbor seal.........................................             2.5            55.6             0.2             1.0               3              56
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\1\1 Sunrise Wind only expects up to three UXO/MECs to necessitate high-order removal (detonation) and only expects that these would be found in the
  Lease Area, not the export cable corridor.

HRG Surveys
    Sunrise Wind's proposed HRG survey activity includes the use of 
impulsive (i.e., boomers and sparkers) and non-impulsive (e.g., CHIRP 
SBPs) sources (Table 31).

 Table 31--Representative HRG Survey Equipment and Operating Frequencies
------------------------------------------------------------------------
                                    Representative         Operating
        Equipment type             equipment model      frequency  (kHz)
------------------------------------------------------------------------
Sub-bottom profiler...........  EdgeTech 216.........               2-16
                                EdgeTech 424.........               4-24
                                EdgeTech 512.........             0.7-12
                                GeoPulse 5430A.......               2-17
                                Teledyne Benthos                     2-7
                                 Chirp III--TTV 170.
Sparker.......................  Applied Acoustics                0.3-1.2
                                 Dura-spark UHD (400
                                 tip, 500 J).
Boomer........................  Applied Acoustics                  0.1-5
                                 triple plate S-Boom
                                 (700-1,000 J).
------------------------------------------------------------------------

    Authorized takes would be by Level B harassment only in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated, even absent mitigation, nor proposed to be authorized. 
Therefore, the potential for Level A harassment is not evaluated 
further in this document. Sunrise Wind did not request, and NMFS is not 
proposing to authorize, take by Level A harassment incidental to HRG 
surveys. Please see Sunrise Wind's application for details of a 
quantitative exposure analysis (i.e., calculated distances to Level A 
harassment isopleths and Level A harassment exposures). No serious 
injury or mortality is anticipated to result from HRG survey 
activities.
    Specific to HRG surveys, in order to better consider the narrower 
and directional beams of the sources, NMFS has developed a tool for 
determining the sound pressure level (SPLrms) at the 160 dB 
isopleth for the purposes of estimating the extent of Level B 
harassment isopleths associated with HRG survey equipment (NMFS, 2020). 
This methodology incorporates frequency-dependent absorption and some 
directionality to refine estimated ensonified zones. Sunrise Wind used 
NMFS' methodology with additional modifications to incorporate a 
seawater absorption formula and account for energy emitted outside of 
the primary beam of the source. For sources that operate with different 
beamwidths, the maximum beam width was used, and the lowest frequency 
of the source was used when calculating the frequency-dependent 
absorption coefficient.

[[Page 9051]]

    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best scientific information available on source levels 
associated with HRG equipment and therefore, recommends that source 
levels provided by Crocker and Fratantonio (2016) be incorporated in 
the method described above to estimate ranges to the Level A harassment 
and Level B harassment isopleths. In cases when the source level for a 
specific type of HRG equipment is not provided in Crocker and 
Fratantonio (2016), NMFS recommends that either the source levels 
provided by the manufacturer be used or in instances where source 
levels provided by the manufacturer are unavailable or unreliable, a 
proxy from Crocker and Fratantonio (2016) be used instead. Sunrise Wind 
utilized the following criteria for selecting the appropriate inputs 
into the NMFS User Spreadsheet Tool (NMFS, 2018):
    (1) For equipment that was measured in Crocker and Fratantonio 
(2016), the reported SL for the most likely operational parameters was 
selected.
    (2) For equipment not measured in Crocker and Fratantonio (2016), 
the best available manufacturer specifications were selected. Use of 
manufacturer specifications represent the absolute maximum output of 
any source and do not adequately represent the operational source. 
Therefore, they should be considered an overestimate of the sound 
propagation range for that equipment.
    (3) For equipment that was not measured in Crocker and Fratantonio 
(2016) and did not have sufficient manufacturer information, the 
closest proxy source measured in Crocker and Fratantonio (2016) was 
used.
    The Dura-spark measurements and specifications provided in Crocker 
and Fratantonio (2016) were used for all sparker systems proposed for 
the HRG surveys. These included variants of the Dura-spark sparker 
system and various configurations of the GeoMarine Geo-Source sparker 
system. The data provided in Crocker and Fratantonio (2016) represent 
the most applicable data for similar sparker systems with comparable 
operating methods and settings when manufacturer or other reliable 
measurements are not available. Crocker and Fratantonio (2016) provide 
S-Boom measurements using two different power sources (CSP-D700 and 
CSP-N). The CSP-D700 power source was used in the 700 joules (J) 
measurements but not in the 1,000 J measurements. The CSP-N source was 
measured for both 700 J and 1,000 J operations but resulted in a lower 
source level; therefore, the single maximum source level value was used 
for both operational levels of the S-Boom.
    Table 32 identifies all the representative survey equipment that 
operates below 180 kHz (i.e., at frequencies that are audible and have 
the potential to disturb marine mammals) that may be used in support of 
planned survey activities and are likely to be detected by marine 
mammals given the source level, frequency, and beamwidth of the 
equipment. This table also provides all operating parameters used to 
calculate the distances to threshold for marine mammals.

[[Page 9052]]



                                                        Table 32--Summary of Representative HRG Survey Equipment and Operating Parameters
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Operating
          Equipment type             Representative equipment      frequency     Source level   Source level 0- Pulse duration    Repetition      Beamwidth  (degrees)      Information source
                                               model                 (kHz)       SPL rms  (dB)     pk  (dB)          (rms)        rate  (Hz)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sub-bottom Profiler...............  EdgeTech 216..............            2-16             195               -              20               6  24.....................  MAN.
                                    EdgeTech 424..............            4-24             176               -             3.4               2  71.....................  CF.
                                    EdgeTech 512..............          0.7-12             179               -               9               8  80.....................  CF.
                                    GeoPulse 5430A............            2-17             196               -              50              10  55.....................  MAN.
                                    Teledyn Benthos Chirp III--           2-17             197               -              60              15  100....................  MAN.
                                     TTV 170.
Sparker...........................  Applied Acoustics                  0.3-1.2             203             211             1.1               4  Omni...................  CF.
                                     DuraSpark UHD (400 tips,
                                     500 J).
Boomer............................  Applied Acoustics triple             0.1-5             205             211             0.6               4  80.....................  CF.
                                     plate S-Boom (700-1,000
                                     J).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
- = not applicable; CF = Crocker and Fratantonio (2016); MAN = Manufactures Specifications.
Source Levels are given in dB re 1 [micro]Pa @1m.


[[Page 9053]]

    Results of modeling using the methodology described above indicated 
that, of the HRG equipment planned for use by Sunrise Wind that has the 
potential to result in Level B harassment of marine mammals, sound 
produced by the Applied Acoustics sparkers and Applied Acoustics 
triple-plate S-boom would propagate furthest to the Level B harassment 
isopleth (141 m; Table 33). For the purposes of take estimation, it was 
conservatively assumed that sparkers and/or boomers would be the 
dominant acoustic source for all survey days (although, again, this may 
not always be the case). Thus, the range to the isopleth corresponding 
to the threshold for Level B harassment for and the boomer and sparkers 
(141 m) was used as the basis of take calculations for all marine 
mammals. This is a conservative approach as the actual sources used on 
individual survey days or during a portion of a survey day may produce 
smaller distances to the Level B harassment isopleth.

  Table 33--Distances to the Level B Harassment Thresholds for Each HRG
 Sound Source or Comparable Sound Source Category for Each Marine Mammal
                              Hearing Group
------------------------------------------------------------------------
                                                              Level B
                                                            harassment
                                                          threshold  (m)
         Equipment type            Representative model  ---------------
                                                           All  (SPLrms)
 
------------------------------------------------------------------------
Sub-bottom profiler............  EdgeTech 216...........               9
                                 EdgeTech 424...........               4
                                 EdgeTech 512...........               6
                                 GeoPulse 5430A.........              21
                                 Teledyn Benthos Chirp                48
                                  III--TTV 170.
Sparker........................  Applied Acoustics Dura-              34
                                  Spark UHD (700 tips,
                                  1,000 J).
                                 Applied Acoustics Dura-             141
                                  Spark UHD (400 tips,
                                  500 J).
Boomer.........................  Applied Acoustics                   141
                                  triple plate S-Boom
                                  (700-1,000 J).
------------------------------------------------------------------------

    To estimate densities for the HRG surveys occurring both within the 
lease area and within the SWEC based on Roberts and Halpin (2022), a 5-
km (3.11 mi) perimeter was applied around each area (see Figures 34 and 
35 of the Updated Density and Take Estimation Memo for Sunrise Wind) 
using GIS (ESRI, 2017). Given that HRG surveys could occur at any point 
year-round, the annual average density for each species was calculated 
using average monthly densities from January through December (Table 
34).

 Table 34--Annual Average Marine Mammal Densities Along the Export Cable
                Corridor and Sunrise Wind Lease Area \1\
------------------------------------------------------------------------
                                     SWEC corridor
                                    annual  average    Lease area annual
      Marine mammal species             density         average density
                                    (individual per     (individual per
                                        km\2\)              km\2\)
------------------------------------------------------------------------
Mysticetes:
    Blue whale *................              0.0000              0.0000
    Fin Whale *.................              0.0022              0.0020
    Humpback Whale..............              0.0011              0.0012
    Minke Whale.................              0.0052              0.0051
    North Atlantic Right Whale *              0.0004              0.0016
    Sei Whale *.................              0.0004              0.0005
Odontocetes:
    Atlantic Spotted Dolphin....              0.0006              0.0005
    Atlantic White-sided Dolphin              0.0117              0.0144
    Bottlenose Dolphin..........              0.0127              0.0091
    Common Dolphin..............              0.0827              0.0802
    Harbor Porpoise.............              0.0297              0.0372
    Pilot Whales................              0.0011              0.0021
    Risso's Dolphin.............              0.0005              0.0005
    Sperm Whale *...............              0.0001              0.0002
Phocid (pinnipeds):
    Seals (Harbor and Gray).....              0.0910              0.0917
------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\1\ Values presented in this table are from the Sunrise Wind Updated
  Density and Take Estimation Memo, which can be found on NMFS' website.

    The maximum range (141 m) to the Level B harassment threshold and 
the estimated trackline distance traveled per day by a given survey 
vessel (i.e., 70 km) were then used to calculate the daily ensonified 
area or zone of influence (ZOI) around the survey vessel.
    The ZOI is a representation of the maximum extent of the ensonified 
area around a HRG sound source over a 24-hr period. The ZOI for each 
piece of equipment operating at or below 180 kHz was calculated per the 
following formula:

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


[[Page 9054]]


Where r is the linear distance from the source to the harassment 
isopleth.

    The largest daily ZOI (19.8 km\2\ (7.64 mi\2\)), associated with 
the proposed use of boomers, was applied to all planned survey days.
    Overally, Sunrise Wind estimated approximately a length of 12,604 
km (7,831.76 mi) of surveys will occur within the Lease Area and 11,946 
km (7,422.9 mi) would occur within the SWEC corridor. Potential Level B 
density-based harassment exposures are estimated by multiplying the 
average annual density of each species within the survey area by the 
daily ZOI. That product was then multiplied by the number of planned 
survey days in each sector during the approximately 2-year construction 
timeframe (171 days in the SWEC corridor and 180 days in the Lease 
Area), and the product was rounded to the nearest whole number. This 
assumed a total ensonified area of 3,566 km\2\ (1,376.84 mi\2\) in the 
Lease Area and 3,380 km\2\ (1,305.03 mi\2\) along the SWEC corridor. 
Given that the HRG surveys are anticipated to occur over 2 years of 
construction activities, the total survey effort and associated 
ensonified areas were split equally across 2 years. These results can 
be found in Table 35.

  Table 35--Estimate Take, by Level B Harassment, Incidental to HRG Surveys During the 2-Year Construction Period (With Information Presented for Both
                                                            Years of Construction Activities)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                Year 1 construction     Year 2 construction                                         Highest     Highest
                                               phase take by survey    phase take by survey      Total     PSO data                 annual      annual
            Marine mammal species            ------------------------------------------------  density-      take     Mean group    level B     level B
                                              SRWF lease    SRWF EC   SRWF lease    SRWF EC   based take   estimate      size      take for    take for
                                                 area      corridor      area      corridor     estimate                            year 1      year 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue Whale *............................         0.0         0.0         0.0         0.0         0.0  ..........         1.0           1           1
    Fin Whale *.............................         3.6         3.7         3.6         3.7         7.3         5.3         1.8           8           8
    Humpback Whale..........................         2.1         1.9         2.1         1.9         4.0        13.2         2.0          14          14
    Minke Whale.............................         9.0         8.7         9.0         8.7        17.8         4.8         1.2          18          18
    North Atlantic Right Whale *............         2.8         0.7         2.8         0.7         3.5  ..........         2.4           4           4
    Sei Whale *.............................         0.9         0.7         0.9         0.7         1.5  ..........         1.6           2           2
Odontocetes:
    Atlantic Spotted Dolphin................         0.9         1.1         0.9         1.1         2.0  ..........        29.0          29          29
    Atlantic White-sided Dolphin............        25.6        19.8        25.6        19.8        45.4  ..........        27.9          46          46
    Bottlenose Dolphin......................        16.2        21.5        16.2        21.5        37.8        80.3         7.8          81          81
    Common Dolphin..........................       143.0       139.8       143.0       139.8       282.8     1,887.3        34.9       1,888       1,888
    Harbor Porpoise.........................        66.3        50.1        66.3        50.1       116.4  ..........         2.7         117         117
    Pilot Whales............................         3.7         1.9         3.7         1.9         5.6  ..........         8.4           9           9
    Risso's Dolphin.........................         1.0         0.9         1.0         0.9         1.8         1.9         5.4           6           6
    Sperm Whale *...........................         0.4         0.2         0.4         0.2         0.6  ..........         1.5           2           2
Phocid (pinnipeds):
    Gray Seal...............................        50.3        47.4        50.3        47.4        97.7         5.7         1.4          98          98
    Harbor Seal.............................       113.1       106.4       113.1       106.4       219.5         9.0         0.0         220         220
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.

    As mentioned previously, HRG surveys would also routinely be 
carried out during the period of time following construction of the 
Sunrise Wind Lease Area and SWEC corridor, which, for the purposes of 
exposure modeling, Sunrise Wind assumed to be 3 years. Generally, 
Sunrise followed the same approach as described above for HRG surveys 
occurring during the 2 years of construction activities with the only 
modification during the 3-year operations years being a difference in 
the survey effort. During the 3 years of operations, Sunrise Wind 
estimates that HRG surveys would cover 2,898 km (1,800.73 mi) within 
the Lease Area and 3,413 km (2,120.74 mi) along the SRWEC corridor 
annually. Maintaining that 70 km (43.5 mi) are surveyed per day, this 
amounts to 41.4 days of survey activity in the Lease Area and 48.8 days 
of survey activity along the SRWEC corridor each year or 270.6 days 
total for the three-year timeframe following the 2 years of 
construction activities. Density-based take was estimated using the 
same approach outlined above by multiplying the daily ZOI by the annual 
average densities and separately by the number of survey days planned 
for the SWEC and Sunrise Wind Lease Area. Using the same approach 
described above, Sunrise Wind estimated a conservative amount of annual 
take by Level B harassment based on the highest exposures predicted by 
the density-based, PSO based, or average group size-based estimates. 
The highest predicted exposure value was multiplied by three to yield 
the amount of take Sunrise Wind requested and that is proposed for 
authorization, as shown in Table 36 below.

                      Table 36--Estimate Take, by Level B Harassment, Incidental to HRG Surveys During the 3-Year Operations Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Annual operations phase take
                                                  by survey area           Annual total     Annual PSO                                     Total Level B
          Marine mammal species          --------------------------------  density-based     Data take      Mean group    Highest annual    take over 3
                                            SRWF lease        SRWF EC      take estimate     estimate          size        Level B take    years of HRG
                                               area          corridor                                                                         surveys
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue Whale *........................             0.0             0.0             0.0  ..............             1.0               1               3
    Fin Whale *.........................             1.6             2.1             3.7             2.7             1.8               4              12
    Humpback Whale......................             1.0             1.1             2.0             6.8             2.0               7              21
    Minke Whale.........................             4.2             5.0             9.1             2.4             1.2              10              30
    North Atlantic Right Whale *........             1.3             0.4             1.7  ..............             2.4               3               9
    Sei Whale *.........................             0.4             0.4             0.8  ..............             1.6               2               6
Odontocetes:
    Atlantic Spotted Dolphin............             0.4             0.6             1.0  ..............            29.0              29              87
    Atlantic White-sided Dolphin........            11.8            11.3            23.1  ..............            27.9              28              84

[[Page 9055]]

 
    Bottlenose Dolphin..................             7.5            12.3            19.8            41.3             7.8              42             126
    Common Dolphin......................            65.8            79.9           145.7           970.4            34.9             971           2,913
    Harbor Porpoise.....................            30.5            28.6            59.1  ..............             2.7              60             180
    Pilot Whales........................             1.7             1.1             2.8  ..............             8.4               9              27
    Risso's Dolphin.....................             0.4             0.5             0.9             1.0             5.4               6              18
    Sperm Whale *.......................             0.2             0.1             0.3  ..............             1.5               2               6
Phocid (pinnipeds):
    Gray Seal...........................            23.3            27.1            50.2             2.9             1.4              51             153
    Harbor Seal.........................            52.0            60.8           112.8             4.6             1.4             113             339
--------------------------------------------------------------------------------------------------------------------------------------------------------
 * Denotes species listed under the Endangered Species Act.

Total Proposed Take Across All Activities

    Level A harassment and Level B harassment proposed take numbers for 
the combined activities of impact pile driving (assuming 10 dB of sound 
attenuation) during the impact installation of monopile, OCS-DC 
foundations, and casing pipe installation; vibratory pile driving for 
sheet pile installation and removal; HRG surveys; and potential UXO/MEC 
detonations are provided by year in Table 37. NMFS also presents the 5-
year total amount of take for each species in Table 38. The mitigation 
and monitoring measures provided in the Proposed Mitigation and 
Proposed Monitoring and Reporting sections are activity-specific and 
are designed to minimize acoustic exposures to marine mammal species.
    Table 37 below depicts the proposed annual take for authorization, 
given that specific activities are expected to occur within specific 
years. Sunrise Wind is currently planning for all construction 
activities related to permanent structures (i.e., WTG foundations, OCS-
DC foundation installation, cable landfall structures) to occur within 
the first year of the project. HRG surveys are expected to occur, with 
varying effort, across all 5-years of the proposed rulemaking's 
effective duration. More specifically, as a conservative assumption, 
the Year 1 proposed take includes the installation of all WTGs and OCS-
DC foundations, cable landfall construction, one year of HRG surveys, 
and up to three high-order detonations of UXOs/MECs (at a rate of one 
per day for up to three days). Take for years 2-5 accounts for HRG 
surveys. NMFS notes that while HRG surveys are expected to occur across 
all 5years (2023-2028) of the effective period of the rulemaking (a 
total of 621 days across all 5 years), survey effort will vary. As 
such, during the first 2 years, up to 180 days of survey effort in the 
Lease Area and 171 days in the export cable corridor would occur and 
during the three post-construction/operation years of Sunrise Wind, up 
to 41.4 days of survey activity in the Lease Area and 48.8 days of 
survey activity along the SWEC corridor would occur annually, equating 
to a total of 270.6 days during the last 3 years of the rulemaking. All 
activities are expected to be completed by early 2028, equating to the 
5 years of activities as described in this preamble.
    Based on the distribution of activities over the five-year period 
described above and the annual take estimates shown in Tables 21, 25, 
30, 35, and 36 above, Tables 37 and 38 below summarize the total 
(across all activities) yearly and five-year take proposed for 
authorization.

[[Page 9056]]



 Table 37--Proposed Level A Harassment and Level B Harassment Takes for All Activities Proposed To Be Conducted During the Construction and Development of the Sunrise Wind Offshore Wind Energy
                                              Facility Over 5 Years. Year 1 Represents the Maximum Amount of Take That Would Be Authorized Annually
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Year 1                    Year 2                    Year 3                    Year 4                    Year 5
                                                    NMFS stock ---------------------------------------------------------------------------------------------------------------------------------
              Marine mammal species                 abundance     Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B
                                                                 harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *.................................      \a\ 412            0            4            0            1            0            1            0            1            0            1
    Fin whale *..................................        6,802            4           78            0            8            0            4            0            4            0            4
    Humpback whale...............................        1,396            3           89            0           14            0            7            0            7            0            7
    Minke whale..................................       21,968           27          419            0           18            0           10            0           10            0           10
    North Atlantic Right whale *.................          368            0           35            0            4            0            3            0            3            0            3
    Sei whale *..................................        6,292            2           31            0            2            0            2            0            2            0            2
Odontocetes:
    Atlantic spotted dolphin.....................       39,921            0          114            0           15            0           29            0           29            0           29
    Atlantic white-sided dolphin.................       93,221            0          639            0           46            0           28            0           28            0           28
    Bottlenose dolphin...........................       62,851            0          425            0           81            0           42            0           42            0           42
    Common dolphin...............................      172,974            0        7,393            0        1,888            0          971            0          971            0          971
    Harbor porpoise..............................       95,543           20        1,008            0          117            0           60            0           60            0           60
    Pilot whales.................................       68,139            0           58            0            6            0            9            0            9            0            9
    Risso's dolphin..............................       35,215            0           47            0            3            0            6            0            6            0            6
    Sperm whale *................................        4,349            0           14            0            1            0            2            0            2            0            2
Phocid (pinnipeds):
    Gray seal....................................       27,300            3        1,099            0           98            0           51            0           51            0           51
    Harbor Seal..................................       61,336            5        2,468            0          220            0          113            0          113            0          113
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our preliminary small numbers determination.


[[Page 9057]]


 Table 38--Total 5-Year Proposed Takes of Marine Mammals (by Level A Harassment and Level B Harassment) for All
  Activities Proposed To Be Conducted During the Construction and Development of the Sunrise Wind Offshore Wind
                                                 Energy Project
----------------------------------------------------------------------------------------------------------------
                                                                                   5-Year totals
                                                                 -----------------------------------------------
              Marine mammal species                 NMFS stock                                      5-Year sum
                                                     abundance    Proposed Level  Proposed Level    (Level A +
                                                                   A harassment    B harassment      Level B)
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue whale *................................         \a\ 402               0               7               7
    Fin whale *.................................           6,802               4              97             101
    Humpback whale..............................           1,396               3             123             126
    Minke whale.................................          21,968              27             467             494
    North Atlantic Right whale *................             368               0              47              47
    Sei whale *.................................           6,292               2              39              41
Odontocetes:
    Atlantic Spotted dolphin....................          39,921               0             215             215
    Atlantic White-sided dolphin................          93,221               0             768             768
    Bottlenose dolphin..........................          62,851               0             631             631
    Common dolphin..............................         172,974               0          12,193          12,193
    Harbor porpoise.............................          95,543              20           1,304           1,324
    Pilot whales................................          68,139               0              91              91
    Risso's dolphin.............................          35,215               0              68              68
    Sperm whale *...............................           4,349               0              21              21
Phocid (pinnipeds):
    Gray seal...................................          27,300               3           1,350           1,353
    Harbor seal.................................          61,336               5           3,027           3,032
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is
  utilizing this value for our preliminary small numbers determination.

    To inform both the negligible impact analysis and the small numbers 
determination, NMFS assesses the greatest amount of proposed take of 
marine mammals that could occur within any given year (which in the 
case of this rule is based on the predicted Year 1 for all species). In 
this calculation, the maximum estimated number of Level A harassment 
takes in any one year is summed with the maximum estimated number of 
Level B harassment takes in any one year for each species to yield the 
highest number of estimated take that could occur in any year. Table 39 
also depicts the amount of take proposed relative to each stock 
assuming that each individual is taken only once, which specifically 
informs the small numbers determination.

 Table 39--Maximum Number of Proposed Takes (Level A Harassment and Level B Harassment) That Could Occur in Any
    One Year of the Project Relative to Stock Population Size Assuming Each Take Is of a Different Individual
----------------------------------------------------------------------------------------------------------------
                                                          Maximum annual take proposed for authorization
                                                 ---------------------------------------------------------------
                                                                                                   Total percent
      Marine mammal species         NMFS stock     Maximum Level   Maximum Level                    stock taken
                                     abundance     A harassment    B harassment   Maximum annual     based on
                                                        \b\             \c\          take \d\     maximum annual
                                                                                                     take \e\
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Blue Whale *................         \a\ 412               0               4               4            0.97
    Fin Whale *.................           6,802               4              78              82            1.21
    Humpback Whale..............           1,396               3              89              92            6.59
    Minke Whale.................          21,968              27             419             446            2.03
    North Atlantic Right Whale *             368               0              35              35            9.51
    Sei Whale *.................           6,292               2              31              33            0.52
Odontocetes:
    Atlantic Spotted Dolphin....          39,921               0             114             114            0.29
    Atlantic White-sided Dolphin          93,221               0             639             639            0.69
    Bottlenose Dolphin..........          62,851               0             425             425            0.68
    Common Dolphin..............         172,974               0           7,393           7,393            4.27
    Harbor Porpoise.............          95,543              20           1,008           1,028            1.08
    Pilot Whales................          68,139               0              58              58            0.09
    Risso's Dolphin.............          35,215               0              47              47            0.13
    Sperm Whale *...............           4,349               0              14              14            0.32
Phocid (pinnipeds):
    Gray Seal...................          27,300               3           1,099           1,102            4.04
    Harbor Seal.................          61,336               5           2,468           2,473            4.03
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.

[[Page 9058]]

 
\a\ The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is
  utilizing this value for our preliminary small numbers determination.
\b\ These values are based on the activities occurring in Year 1 of the project, as these are conservatively
  estimated to cause the highest numbers of Level A harassment takes of marine mammals.
\c\ These values are based on the activities occurring in Year 1 of the project, as these are conservatively
  estimated to cause the highest numbers of Level C harassment takes of marine mammals.
\d\ Calculations of the maximum annual take are based on the maximum requested Level A harassment take in any
  one year + the total requested Level B harassment take in any one year.
\e\ Calculations of percentage of stock taken are based on the maximum requested Level A harassment take in any
  one year + the total requested Level B harassment take in any one year and then compared against the best
  available abundance estimate as shown in Table 5. For this proposed action, the best available abundance
  estimates are derived from the NMFS Stock Assessment Reports (Hayes et al., 2022).

Proposed Mitigation

    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 impact on the species or stock and its habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stock for 
taking for certain subsistence uses (latter not applicable for this 
action). NMFS' regulations require applicants for incidental take 
authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting the activity or other means of effecting the least 
practicable adverse impact upon the affected species or stocks and 
their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous incidental take 
authorizations issued in association with in-water construction 
activities (e.g., soft-start, establishing shutdown zones). Additional 
measures have also been incorporated to account for the fact that the 
proposed construction activities would occur offshore. Modeling was 
performed to estimate harassment zones, which were used to inform 
mitigation measures for pile driving 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 measures considered and proposed here fall 
into three categories: temporal (seasonal and daily) work restrictions, 
real-time measures (shutdown, clearance zones, and vessel strike 
avoidance), and noise abatement/reduction measures. Seasonal work 
restrictions are designed to avoid or minimize operations when marine 
mammals are concentrated or engaged in behaviors that make them more 
susceptible, or make impacts more likely) in order to reduce both the 
number and severity of potential takes, and are effective in reducing 
both chronic (longer-term) and acute effects. Real-time measures, such 
as shutdown and pre-clearance zones, and vessel strike avoidance 
measures are intended to reduce the probability or scope of near-term 
acute impacts by taking steps in real time once a higher-risk scenario 
is identified (i.e., once animals are detected within an impact zone). 
Noise abatement 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 results 
in longer term chronic impacts.
    Below, we describe training, coordination, and vessel strike 
avoidance measures that apply to all activity types, and then in the 
following subsections, we describe the measures that apply specifically 
to WTG and OCS-DC foundation installation, sheet pile or casing pipe 
scenario installation and removal, UXO/MEC detonations, HRG surveys, 
and fishery monitoring surveys.

Training and Coordination

    Sunrise Wind would be 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., would be 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 would only be discussed after delay or shutdown 
has occurred. All relevant personnel and the marine mammal monitoring 
team would be required to participate in joint, onboard briefings that 
would be led by Sunrise Wind project personnel and the Lead PSO prior 
to the beginning of project activities. This would serve to ensure that 
all relevant responsibilities, communication procedures, marine mammal 
monitoring and mitigation protocols, reporting protocols, safety, 
operational procedures, and ITA requirements are clearly understood by 
all involved parties. The briefing would be repeated whenever new 
relevant personnel (e.g., new PSOs, acoustic source operators, relevant 
crew) join the operation before work commences.
    More information on vessel crew training requirements can be found 
in the Vessel Strike Avoidance Measures section below.
North Atlantic Right Whale Awareness Monitoring
    Sunrise 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

[[Page 9059]]

ongoing visual and passive acoustic monitoring efforts and 
opportunities (outside of Sunrise Wind's efforts) and allows for 
planning of construction activities, when practicable, to minimize 
potential impacts on North Atlantic right whales.
Protected Species Observers and PAM Operator Training
    Sunrise Wind would employ NMFS-approved PSOs and PAM operators. The 
PSO field team and PAM team would have a lead member (designated as the 
``Lead PSO'' or ``PAM Lead'') who would have prior experience observing 
mysticetes, odontocetes and pinnipeds in the Northwestern Atlantic 
Ocean on other offshore projects requiring PSOs. Any remaining PSOs and 
PAM operators must have previous experience observing marine mammals 
during projects and must have the ability to work with all required and 
relevant software and equipment. New and/or inexperienced PSOs would be 
paired with an experienced PSO to ensure that the quality of marine 
mammal observations and data recording is kept consistent.
    All PSOs and PAM operators would be required to complete a Permits 
and Environmental Compliance Plan (PECP) training as well as a 2-day 
training and refresher session on monitoring protocols. These trainings 
would be held with the PSO provider and project compliance 
representatives and would occur before the start of project activities 
related to the construction and development of the Sunrise Wind 
Offshore Wind Farm Project. PSOs would be required during all 
foundation installations, sheet pile or casing pipe installation/
removal activities, UXO/MEC detonations, and HRG surveys. More 
information on requirements during each activity can be found in the 
Proposed Monitoring and Reporting section.

Vessel Strike Avoidance Measures

    This proposed rule contains numerous vessel strike avoidance 
measures. Sunrise 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 (e.g., due to towing, etc.). Vessel operators and crews 
will receive protected species identification training prior to the 
start of in-water construction activities. This training will cover 
information about marine mammals and other protected species known to 
occur or which have the potential to occur in the project area. It will 
include training on making observations in both good weather conditions 
(i.e., clear visibility, low wind, and low sea state) and bad weather 
conditions (i.e., fog, high winds and high sea states, in glare). 
Training will not only include identification skills but will also 
include information and resources available regarding applicable 
Federal laws and regulations for protected species.
    Sunrise Wind will abide by the following vessel strike avoidance 
measures:
     All vessel operators and crews 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.
     During any vessel transits within or to/from the Sunrise 
Wind project area, such as for crew transfers, an observer would be 
stationed at the best vantage point of the vessel(s) to ensure that the 
vessel(s) are maintaining the appropriate separation distance from 
marine mammals.
     Year-round and when a vessel is in transit, all vessel 
operators will continuously monitor U.S. Coast Guard VHF Channel 16 
over which North Atlantic right whale sightings are broadcasted.
     At the onset of transiting and at least once every four 
hours, vessel operators and/or trained crew members will monitor the 
project's Situational Awareness System, WhaleAlert, and the Right Whale 
Sighting Advisory System (RWSAS) for the presence of North Atlantic 
right whales Any observations of any large whale by any Sunrise Wind 
staff or contractors, including vessel crew, must be communicated 
immediately to PSOs, PAM operator, and all vessel captains to increase 
situational awareness. Conversely, any large whale observation or 
detection via a sighting network (e.g., Mysticetus) by PSOs or PAM 
operators will be conveyed to vessel operators and crew.
     All vessels would comply with existing NMFS regulations 
and speed restrictions and state regulations, as applicable, for North 
Atlantic right whales.
     In the event that any Slow Zone (designated as a DMA) is 
established that overlaps with an area where a project-associated 
vessel would operate, that vessel, regardless of size, will transit 
that area at 10 knots or less.
     Between November 1st and April 30th, all vessels, 
regardless of size, would operate port to port (specifically from ports 
in New Jersey, New York, Maryland, Delaware, and Virginia) at 10 knots 
or less, except for vessels while transiting in Narragansett Bay or 
Long Island Sound (which have not been demonstrated by best available 
science to provide consistent habitat for North Atlantic right whales).
     All vessels, regardless of size, would immediately reduce 
speed to 10 knots or less when any large whale, mother/calf pairs, or 
large assemblages of non-delphinid cetaceans are observed near (within 
100 m) an underway vessel.
     All vessels, regardless of size, would immediately reduce 
speed to 10 knots or less when a North Atlantic right whale is sighted, 
at any distance, by an observer or anyone else on the vessel.
     If a vessel is traveling at greater than 10 knots, in 
addition to the required dedicated visual observer, real-time PAM of 
transit corridors must be conducted 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 knots or less for the following 12 hours. Each 
subsequent detection will trigger a 12-hour reset. A slowdown in the 
transit corridor expires when there has been no further visual or 
acoustic detection of North Atlantic right whales in the transit 
corridor in the past 12 hours.
     All underway vessels (e.g., transiting, surveying) 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). Visual observers must be 
equipped with alternative monitoring technology 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 
proposed action. Visual observers may be third-party observers (i.e., 
NMFS-approved PSOs) or crew members and must not have any other duties 
other than observing for marine mammals. Observer training related to 
these vessel strike avoidance measures must be conducted for all vessel 
operators and crew prior to the start of in-water construction 
activities to distinguish marine mammals from other phenomena and 
broadly to identify a marine mammal as a North Atlantic right whale, 
other whale (defined in this context as sperm whales or baleen whales 
other than North Atlantic right whales), or other marine

[[Page 9060]]

mammal. Confirmation of the observers' training and understanding of 
the ITA requirements must be documented on a training course log sheet 
and reported to NMFS.
     All vessels must maintain a minimum separation distance of 
500 m from North Atlantic right whales. If a whale is observed but 
cannot be confirmed as a species other than a North Atlantic right 
whale, the vessel operator must assume that it is a North Atlantic 
right whale and take appropriate action.
     If underway, all vessels must steer a course away from any 
sighted North Atlantic right whale at 10 knots or less such that the 
500-m minimum separation distance requirement is not violated. If a 
North Atlantic right whale or a large whale that cannot be confirmed as 
a species other than a North Atlantic right whale is sighted within 500 
m of an underway vessel, that vessel must shift the engine to neutral. 
Engines will not be engaged until the whale has moved outside of the 
vessel's path and beyond 500 m. If a whale is observed but cannot be 
confirmed as a species other than a North Atlantic right whale, the 
vessel operator must assume that it is a North Atlantic right whale and 
take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from sperm whales and non-North Atlantic right whale baleen 
whales. If one of these species is sighted within 100 m of an underway 
vessel, that vessel must shift the engine to neutral. Engines will not 
be engaged until the whale has moved outside of the vessel's path and 
beyond 100 m.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
delphinoid cetaceans and pinnipeds with an exception made for those 
that approach the vessel (e.g., bow-riding dolphins). If a delphinoid 
cetacean or pinniped is sighted within 50 m of an underway vessel, that 
vessel must shift the engine to neutral (again, with an exception made 
for those that approach the vessel). Engines will not be engaged until 
the animal(s) has moved outside of the vessel's path and beyond 50 m.
     When a marine mammal(s) is sighted while a vessel is 
underway, 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, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If a marine mammal(s) is 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engine(s) until 
the animal(s) is clear of the area. This 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).
     All vessels underway must not divert or alter course in 
order to approach any marine mammal.
     For in-water construction heavy machinery activities, 
other than impact or vibratory pile driving, if a marine mammal is on a 
path towards or comes within 10 m of equipment, Sunrise Wind must cease 
operations until the marine mammal has moved more than 10 m on a path 
away from the activity to avoid direct interaction with equipment.
     Sunrise Wind must submit a North Atlantic right whale 
vessel strike avoidance plan 180 days prior to commencement of vessel 
use. The plan would, at minimum, describe how PAM, in combination with 
visual observations, would be conducted to ensure the transit corridor 
is clear of right whales. The plan would also provide details on the 
vessel-based observer protocols on transiting vessels.

WTG and OCS-DC Foundation Installation

    For WTG and OCS-DC foundation installation, NMFS is proposing to 
include the following mitigation requirements, which are described in 
detail below: seasonal and daily restrictions; the use of noise 
abatement systems; the use of PSOs and PAM operators; the 
implementation of clearance and shutdown zones, and the use of soft-
start.
Seasonal and Daily Restrictions
    No foundation impact pile driving activities would occur January 1 
through April 30. Based on the best scientific information available 
(Roberts and Halpin, 2022), the highest densities of North Atlantic 
right whales in the project area are expected during the months of 
January through April. NMFS is requiring this seasonal work restriction 
to minimize the potential for North Atlantic right whales to be exposed 
to noise incidental to impact pile driving of monopiles, which is 
expected to greatly reduce the number of takes of North Atlantic right 
whales.
    No more than three foundation monopiles would be installed per day. 
Monopiles would be no larger than 15-m in diameter, representing the 
larger end of the tapered 7/15-m monopile design. For all monopiles, 
the minimum amount of hammer energy necessary to effectively and safely 
install and maintain the integrity of the piles must be used. Hammer 
energies must not exceed 4,000 kJ.
    Sunrise Wind has requested authorization to initiate pile driving 
during nighttime when detection of marine mammals is visually 
challenging. To date, Sunrise Wind has not submitted a plan containing 
the information necessary, including evidence, that their proposed 
systems are capable of detecting marine mammals, particularly large 
whales, at night and at distances necessary to ensure mitigation 
measures are effective. The available information on traditional night 
vision technologies demonstrates that there is a high degree of 
uncertainty in reliably detecting marine mammals at night at the 
distances necessary for this project (Smultea et al., 2021). Therefore, 
at this time, NMFS plans to only allow Sunrise Wind to initiate pile 
driving during daylight hours and prohibit Sunrise Wind from initiating 
pile driving earlier than one hour after civil sunrise or later than 
1.5 hours before civil sunset. We are, however, proposing to encourage 
and allow Sunrise Wind the opportunity to further investigate and test 
advanced technology and detection systems to support their request. 
NMFS is proposing to condition the LOA such that nighttime pile driving 
would only be allowed if Sunrise Wind submits an Alternative Monitoring 
Plan (as part of the Pile Driving and Marine Mammal Monitoring Plan) to 
NMFS for approval that proves the efficacy of their night vision 
devices (e.g., mounted thermal/IR camera systems, hand-held or wearable 
night vision devices (NVDs), infrared (IR) spotlights) in detecting 
protected marine mammals prior to making a determination in the final 
rule. The plan must include a full description of the proposed 
technology, monitoring methodology, and supporting data demonstrating 
the reliability and effectiveness of the proposed technology in 
detecting marine mammal(s) within the clearance and shutdown zones for 
monopiles before and during impact pile driving. The Plan should 
identify the efficacy of the technology at detecting marine mammals in 
the clearance and shutdowns under all the various conditions 
anticipated during construction, including varying weather conditions, 
sea states, and in consideration of the use of artificial lighting.
Noise Abatement Systems
    Sunrise Wind would employ noise abatement systems (NAS), also known

[[Page 9061]]

as noise attenuation systems, during all impact pile driving of 
monopiles to reduce the sound pressure levels that are transmitted 
through the water in an effort to reduce ranges to acoustic thresholds 
and minimize any acoustic impacts resulting from impact pile driving. 
Sunrise Wind would be required to employ a big double bubble curtain or 
a combination of two or more NAS during these activities as well as the 
adjustment of operational protocols to minimize noise levels.
    Two categories of NAS exist: primary and secondary. A primary NAS 
would be used to reduce the level of noise produced by the pile driving 
activities at the source, typically through adjustments on to the 
equipment (e.g., hammer strike parameters). Primary NAS are still 
evolving and will be considered for use during mitigation efforts when 
the NAS has been demonstrated as effective in commercial projects. 
However, as primary NAS are not fully effective at eliminating noise, a 
secondary NAS would be employed. The secondary NAS is a device or group 
of devices that would reduce noise as it was transmitted through the 
water away from the pile, typically through a physical barrier that 
would reflect or absorb sound waves and therefore, reduce the distance 
the higher energy sound propagates through the water column. Together, 
these systems must reduce noise levels to the lowest level practicable 
with the goal of not exceeding measured 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 
Acoustic Monitoring for Sound Field and Harassment Isopleth 
Verification section).
    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. Secondary NAS that may be used by Sunrise 
Wind include a big bubble curtain (BBC), a hydro-sound damper (HSD), or 
an AdBm Helmholz resonator (Elzinga et al., 2019). See Appendix B 
(Protected Species Mitigation and Monitoring Plan (PSMMP) of the ITA 
application for more information on these systems (Sunrise Wind, 
2022b). If a single system is used, it must be a double big bubble 
curtain (dBBC). Other systems (e.g., noise mitigation screens) are not 
considered feasible for the Sunrise Wind project as they are in their 
early stages of development and field tests to evaluate performance and 
effectiveness have not been completed. Should the research and 
development phase of these newer systems demonstrate effectiveness, as 
part of adaptive management, Sunrise Wind may submit data on the 
effectiveness of these systems and request approval from NMFS to use 
them during pile driving.
    If a bubble curtain is used (single or double), Sunrise Wind would 
be required to maintain the following operational parameters: the 
bubble curtain(s) must distribute air bubbles using a target air flow 
rate of at least 0.5 m\3\/(min*m) and must distribute bubbles around 
100 percent of the piling perimeter for the full depth of the water 
column. 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; no parts of the 
ring or other objects should prevent full seafloor contact. Sunrise 
Wind must require that construction contractors train personnel in the 
proper balancing of airflow to the bubble ring and must require that 
construction contractors submit an inspection/performance report for 
approval by Sunrise Wind within 72 hours following the performance 
test. Corrections to the attenuation device to meet the performance 
standards must occur prior to impact driving of monopiles. If Sunrise 
Wind uses a noise mitigation device in addition to a BBC, similar 
quality control measures would be required.
    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 (~8 m) for more than 150 WTGs in comparable water depths 
(>25 m) and conditions in Europe indicate that attenuation of 10 dB is 
readily achieved (Bellmann, 2019; Bellmann et al., 2020) using single 
BBCs for noise attenuation. Designed to gather additional data 
regarding the efficacy of BBCs, the Coastal Virginia Offshore Wind 
(CVOW) pilot project systematically measured noise resulting from the 
impact driven installation of two 7.8-m monopiles, one installation 
using a dBBC and the other installation using no noise abatement system 
(CVOW, unpublished data). Although many factors contributed to 
variability in received levels throughout the installation of the piles 
(e.g., hammer energy, technical challenges during operation of the 
dBBC), reduction in broadband SEL using the dBBC (comparing 
measurements derived from the mitigated and the unmitigated monopiles) 
ranged from approximately 9-15 dB. Again, NMFS would require Sunrise 
Wind to apply a dBBC or a single BBC coupled with an additional noise 
mitigation device to ensure sound generated from the project does not 
exceed that modeled (assuming 10 dB reduction) at given ranges to 
harassment isopleths and to minimize noise levels to the lowest level 
practicable. Double BBCs are successfully and widely applied across 
European wind development efforts and are known to reduce noise levels 
more than single BBC alone (e.g., Bellman et al., 2020). Sunrise Wind 
anticipates and NMFS agrees that the use of a noise abatement system 
would likely produce field measurements of the isopleth distances to 
the Level A harassment and Level B harassment thresholds that accord 
with those modeled assuming 10 dB of attenuation for impact pile 
driving of monopiles (refer back to the Estimated Take, Proposed 
Mitigation, and

[[Page 9062]]

Proposed Monitoring and Reporting sections).
Use of PSOs and PAM Operators
    As described above, Sunrise Wind would be required to use PSOs and 
acoustic PSOs (i.e., PAM operators) during all foundation installation 
activities. At minimum, four PSOs would be actively observing marine 
mammals before, during, and after pile driving. At least two PSOs would 
be stationed on the pile driving vessel and at least two PSOs would be 
stationed on a secondary, dedicated PSO vessel. The dedicated PSO 
vessel would be located at the outer edge of the 2.3 km (in the summer; 
4.4 km in the winter) large whale clearance zone (unless modified by 
NMFS based on SFV). Concurrently, at least one PAM operator would be 
actively monitoring for marine mammals before, during, and after pile 
driving. More details on PSO and PAM operator requirements can be found 
in the Proposed Monitoring and Reporting section.
    Furthermore, all crew and personnel working on the Sunrise Wind 
project would be required to maintain situational awareness of marine 
mammal presence (discussed further above) and would be required to 
report any sightings to the PSOs.
Clearance and Shutdown Zones
    NMFS is proposing to require the establishment of both clearance 
and shutdown zones during all impact pile driving of WTG and OCS-DC 
foundation piles, which would be monitored by visual PSOs and PAM 
operators before, during and after pile driving. Prior to the start of 
impact pile driving activities, Sunrise Wind would clear the area of 
marine mammals, per the clearance zones in Table 40, to minimize the 
potential for and degree of harassment.
    The purpose of ``clearance'' of a particular zone is to prevent 
potential instances of auditory injury and more severe behavioral 
disturbance or in the case of North Atlantic right whales, avoid and 
minimize behavioral disturbance to the maximum extent practicable (for 
North Atlantic right whales, the clearance and shutdown zones are set 
to any distance; see Table 40) by delaying the commencement of impact 
pile driving if marine mammals are detected within certain pre-defined 
distances from the pile being installed.
    PSOs would visually monitor for marine mammals for a minimum of 60 
minutes immediately prior to commencement of pile driving while PAM 
operators would review data from at least 24 hours prior to pile 
driving and actively monitor hydrophones for 60 minutes immediately 
prior to pile driving. Prior to initiating soft-start procedures, all 
clearance zones must be visually confirmed to be free of marine mammals 
for 30 minutes immediately prior to starting a soft-start of pile 
driving. If a marine mammal is observed entering or within the relevant 
clearance zone prior to the initiation of impact pile driving 
activities, pile driving must be delayed and will not begin until 
either the marine mammal(s) has voluntarily left the specific clearance 
zones and have 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 (i.e., 15 
minutes for small odontocetes and 30 minutes for all other marine 
mammal species).
    Mitigation zones related to impact pile driving activities were 
created around two different seasonal periods in consideration of the 
different seasonal sound speed profiles that were used in JASCO's 
underwater sound propagation modeling, including summer (May through 
November) and winter (December) (Table 40). In addition to the 
clearance and shutdown zones that would be monitored both visually and 
acoustically, NMFS is proposing to establish a minimum visibility zone 
to ensure that marine mammals are visually detected prior to 
commencement of pile driving. The minimum visibility zone would extend 
2,300 m from the pile during summer months and 4,400 m during December 
(Table 40). These values correspond to the maximum low-frequency 
cetacean (i.e., baleen whale) distances to the Level A harassment 
isopleths assuming three monopiles are driven in a day, rounded up to 
the nearest hundred. The entire minimum visibility zone must be visible 
(i.e., not obscured by dark, rain, fog, etc.) for a full 30 minutes 
immediately prior to commencing impact pile driving. 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. 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.
    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. If a marine mammal is observed 
entering or within the respective shutdown zone (Table 40) after impact 
pile driving has begun, the PSO will request a temporary cessation of 
impact pile driving. In situations when shutdown is called for but 
Sunrise Wind determines 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, 
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 
shutdown is not feasible because the shutdown 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. In 
these situations, Sunrise Wind must reduce hammer energy to the lowest 
level practicable.
    After shutdown, impact pile driving may be reinitiated once all 
clearance zones are clear of marine mammals for the minimum species-
specific periods (15 minutes for small odontocetes and 30 minutes for 
all other marine mammal species). 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 is no longer observed 
or 30 minutes has elapsed since the last detection. In cases where 
these criteria are not met, pile driving may restart only if necessary 
to maintain pile stability, at which time Sunrise Wind must use the 
lowest hammer energy practicable to maintain stability. Upon re-
starting pile driving, soft-start protocols must be followed.

[[Page 9063]]

    The clearance and shutdown zone sizes vary by species and are shown 
in Tables 40, 41, and 42. All distances to the perimeter of clearance 
zones are the radii from the center of the pile. Pursuant to the 
proposed adaptive management provisions, Sunrise Wind may request 
modification to these zone sizes pending results of sound field 
verification (see Proposed Monitoring and Reporting section). Any 
changes to zone size would require NMFS' approval.

[[Page 9064]]



              Table 40--Ranges and Mitigation Zones \a\ \f\ \g\ to the Level A and Level B Harassment Thresholds During Impact Pile Driving of WTG Foundations in Summer and Winter
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                WTG foundation impact installation
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                      Level A                                                         Level A
                      Marine mammal species                         harassment        Level B     Clearance zone   Shutdown zone    harassment        Level B     Clearance zone   Shutdown zone
                                                                     zone (m;       harassment      (m) \d\ \f\     (m) \d\ \f\      zone (m;       harassment      (m) \d\ \f\     (m) \d\ \f\
                                                                    SELcum) \c\    zone (m) \f\         \h\             \h\         SELcum) \c\    zone (m) \f\         \h\             \h\
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Summer (May through November)
                                                                                      Winter (December only)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans:
    Fin whale *.................................................           3,680           6,490           3,700           3,700           4,240           6,970           4,300           4,300
    Minke whale.................................................           1,860           6,490           3,700           3,700           2,020           6,970           4,300           4,300
    Sei whale *.................................................           2,670           6,490           3,700           3,700           3,010           6,970           4,300           4,300
    Humpback whale..............................................           3,400           6,490           3,700           3,700           3,820           6,970           4,300           4,300
    North Atlantic right whale *................................           2,510           6,490    See Table 42    See Table 42           2,900           6,970    See Table 42    See Table 42
    Blue whale * \e\............................................           3,680           6,490           3,700           3,700           4,240           6,970           4,300           4,300
Mid-frequency cetaceans:
    Sperm whale *...............................................  ..............           6,490           3,700           3,700  ..............           6,970           4,300           4,300
    Atlantic spotted dolphin....................................  ..............           6,490         \b\ NAS         \b\ NAS  ..............           6,970         \b\ NAS         \b\ NAS
    Atlantic white-sided dolphin................................  ..............           6,490         \b\ NAS         \b\ NAS  ..............           6,970         \b\ NAS         \b\ NAS
    Common dolphin..............................................  ..............           6,490         \b\ NAS         \b\ NAS  ..............           6,970         \b\ NAS         \b\ NAS
    Risso's dolphin.............................................  ..............           6,490         \b\ NAS         \b\ NAS  ..............           6,970         \b\ NAS         \b\ NAS
    Bottlenose dolphin..........................................  ..............           6,490         \b\ NAS         \b\ NAS  ..............           6,970         \b\ NAS         \b\ NAS
    Long-finned pilot whale.....................................  ..............           6,490         \b\ NAS         \b\ NAS  ..............           6,970         \b\ NAS         \b\ NAS
High-frequency cetaceans:
    Harbor porpoise.............................................  ..............           6,490             200             200  ..............           6,970         \b\ NAS         \b\ NAS
Phocid Pinnipeds:
    Gray seal...................................................              30           6,490             100             100              30           6,970             100             100
    Harbor seal.................................................              80           6,490             100             100              80           6,970             100             100
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Zones were made on the assumptions that 7/12-m tapered monopiles would be installed at a rate of 3 monopiles per day with 10 dB of noise attenuation from a noise attenuation system.
\b\ NAS (noise abatement system) means the perimeter of the NAS will serve as the clearance and shutdown zone for species where NAS is indicated.
\c\ The Level A zone represents the exposure ranges of species derived from animal movement modeling.
\d\ The pre-start clearance and shutdown zone for large whales, porpoise, and seals is based upon the maximum Level A zone rounded up for PSO clarity.
\e\ As no Level A exposures were calculated for blue whales (meaning no Level A exposure ranges were calculated), the exposure range for fin whales was used as a proxy.
\f\ All zone monitoring would be achieved through visual observations and passive acoustic monitoring.
\g\ Sunrise Wind's proposed mitigation and monitoring distances are found in Tables 7 and 8 in Sunrise Wind's Protected Species Mitigation and Monitoring Plan; however, NMFS has slightly
  rounded/modified some of these ranges for PSO clarity.
\h\ The minimum visibility zone would extend 2,300 m from the pile during summer months and 4,400 m during December.


           Table 41--Ranges and Mitigation Zones \a\ \f\ \g\ to the Level A and Level B Harassment Thresholds During Impact Pile Driving of Piles for the OCS-DC in Summer and Winter
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                    OCS-DC impact installation
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                      Level A                                                         Level A
                      Marine mammal species                         harassment        Level B                                       harassment        Level B
                                                                     zone (m;       harassment    Clearance zone   Shutdown zone     zone (m;       harassment    Clearance zone   Shutdown zone
                                                                    SELcum) \c\    zone (m) \f\     (m) \d\ \f\     (m) \d\ \f\     SELcum) \c\    zone (m) \f\     (m) \d\ \f\     (m) \d\ \f\
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Summer (May through November)
                                                                                      Winter (December only)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans:
    Fin whale *.................................................           5,550           6,470           5,600           5,600           6,420           6,630           6,500           6,500
    Minke whale.................................................           2,880           6,470           5,600           5,600           3,200           6,630           6,500           6,500
    Sei whale *.................................................           4,220           6,470           5,600           5,600           4,730           6,630           6,500           6,500
    Humpback whale..............................................           5,130           6,470           5,600           5,600           6,030           6,630           6,500           6,500
    North Atlantic right whale *................................           3,620           6,470    See Table 42    See Table 42           4,060           6,630    See Table 42    See Table 42
    Blue whale *................................................           5,550           6,470           5,600           5,600           6,420           6,630           6,500           6,500
Mid-frequency cetaceans:
    Sperm whale *...............................................  ..............           6,470           5,600           5,600  ..............           6,630           6,500           6,500
    Atlantic spotted dolphin....................................  ..............           6,470         \b\ NAS         \b\ NAS  ..............           6,630         \b\ NAS         \b\ NAS
    Atlantic white-sided dolphin................................  ..............           6,470         \b\ NAS         \b\ NAS  ..............           6,630         \b\ NAS         \b\ NAS

[[Page 9065]]

 
    Common dolphin..............................................  ..............           6,470         \b\ NAS         \b\ NAS  ..............           6,630         \b\ NAS         \b\ NAS
    Bottlenose dolphin..........................................  ..............           6,470         \b\ NAS         \b\ NAS  ..............           6,630         \b\ NAS         \b\ NAS
    Long-finned pilot whale.....................................  ..............           6,470         \b\ NAS         \b\ NAS  ..............           6,630         \b\ NAS         \b\ NAS
High-frequency cetaceans:
    Harbor porpoise.............................................             810           6,470             900             900             590           6,630             600             600
Phocid Pinnipeds:
    Gray seal...................................................           1,720           6,470           1,800           1,800           1,730           6,630           1,800           1,800
    Harbor seal.................................................             690           6,470           1,800           1,800             690           6,630           1,800           1,800
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Zones were made on the assumptions that 4-m piled jackets would be installed at a rate of four pin piles per day with 10 dB of noise attenuation from a noise attenuation system.
\b\ NAS (noise abatement system) means that the zone is small enough that it would be encompassed by the bubble curtain.
\c\ The Level A zone represents the exposure ranges of species derived from animal movement modeling.
\d\ The pre-start clearance and shutdown zone for large whales, porpoise, and seals is based upon the maximum Level A zone rounded up for PSO clarity.
\e\ As no Level A exposures were calculated for blue whales (meaning no Level A exposure ranges were calculated), the exposure range for fin whales was used as a proxy.
\f\ All zone monitoring would be achieved through visual observations and passive acoustic monitoring.
\g\ The original mitigation and monitoring distances are found in Tables 9 and 10 in Sunrise Wind's PSMMP; however, NMFS has slightly rounded/modified some of these ranges for PSO clarity.


                    Table 42--Clearance, Shutdown, and Real-Time PAM Monitoring Zones \a\ During Impact Pile Driving Activities (WTG Foundations and OCS-DC) for North Atlantic Right Whales in the Summer and Winter
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Minimum                                           PAM                                           Minimum                                           PAM
          Marine mammal species             visibility    Visual  clearance and shutdown    monitoring    PAM  clearance   PAM  shutdown    visibility    Visual  clearance and shutdown    monitoring    PAM  clearance   PAM  shutdown
                                           zone (m) \b\              zones (m)               zone (m)      zone (m) \c\      zone (m)      zone (m) \b\              zones (m)               zone (m)      zone (m) \c\      zone (m)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Summer (May through November)
                                                                              Winter (December only)
                                         -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
WTG Foundation Impact Installation:
    North Atlantic right whale *........           3,700  Any distance..................          10,000           6,500           3,700           4,300  Any distance..................          10,000       \d\ 7,000           4,300
OCS-DC Impact Installation:
    North Atlantic right whale *........           5,600  Any distance..................          10,000           6,500           5,600           6,500  Any distance..................          10,000           6,700           6,500
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Sunrise Wind may request modification of these zones based on the results of sound field verification.
\b\ The minimum visibility zone is based upon the maximum non-humpback whale Level A harassment zone for the group and rounded up for PSO clarity.
\c\ The PAM clearance zone is equal to the Level B harassment zone.
\d\ As the Level A harassment zone for North Atlantic right whales was less than the Level B harassment zone, the Level B harassment zone was used instead for all distances.


[[Page 9066]]

Soft-Start
    The use of a soft-start procedure is believed to provide additional 
protection to marine mammals by warning them or providing them with a 
chance to leave the area prior to the hammer operating at full 
capacity. Soft-start typically involves initiating hammer operation at 
a reduced energy level (relative to full operating capacity) followed 
by a waiting period. Sunrise Wind must utilize a soft-start protocol 
for impact pile driving of monopiles by performing 4-6 strikes per 
minute at 10 to 20 percent of the maximum hammer energy for a minimum 
of 20 minutes. NMFS notes that it is difficult to specify a reduction 
in energy for any given hammer because of variation across drivers. For 
impact hammers, the actual number of strikes at reduced energy will 
vary because operating the hammer at less than full power results in 
``bouncing'' of the hammer as it strikes the pile, resulting in 
multiple ``strikes''; however, as mentioned previously, Sunrise Wind 
will target less than 20 percent of the total hammer energy for the 
initial hammer strikes during soft-start. A soft-start will be required 
at the beginning of each day's monopile installation and at any time 
following a cessation of impact pile driving of 30 minutes or longer. 
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 would 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 (i.e., 15 minutes for small 
odontocetes and 30 minutes for all other species).

Cable Landfall Construction

    For sheet pile or casing pipe installation and removal, NMFS is 
proposing to include the following mitigation requirements, which are 
described in detail below: daily restrictions; the use of PSOs; the 
implementation of clearance and shutdown zones; and the use of soft-
start if a pneumatic impact hammer is used. Given the short duration of 
work, relatively small harassment zones if a pneumatic hammer is used, 
and lower noise levels during vibratory driving, NMFS is not proposing 
to require PAM or noise abatement system use during these activities.
Seasonal and Daily Restrictions
    Sunrise Wind has proposed to install and remove the sheet piles or 
casing pipe scenario within the first year of the effective period of 
the regulations and LOA. NMFS is not requiring any seasonal work 
restrictions for landfall construction in this proposed rule due to the 
relatively short duration of work (i.e., low associated impacts). 
Sunrise Wind would be required, however, to conduct vibratory pile 
driving associated with sheet pile installation and pneumatic hammering 
of casing pipes during daylight hours only. Although North Atlantic 
right whales do migrate in coastal waters, they are not expected to 
occur in Narragansett Bay where work would be occurring. The distance 
to the Level B harassment isopleth (9.74 km) for installation of steel 
sheet piles and the maximum distance to the Level A isopleth (3.95 km) 
for installation of a casing pipe do not extend beyond the mouth of 
Narragansett Bay; thus, it is unlikely that right whales (or most 
species of marine mammals considered here) would be exposed to 
vibratory pile driving during sheet pile installation at levels close 
to the 120 dB Level B harassment threshold or pneumatic hammering at 
Level A harassment thresholds.
Use of PSOs
    Prior to the start of vibratory pile driving or pneumatic hammering 
activities, at least two PSOs located at the best vantage points would 
monitor the clearance zone for 30 minutes, continue monitoring during 
pile driving or pneumatic hammering, and for 30 minutes following 
cessation of either activity. The clearance zones must be fully visible 
for at least 30 minutes and all marine mammal(s) must be confirmed to 
be outside of the clearance zone for at least 30 minutes immediately 
prior to initiation of either activity.
Clearance and Shutdown Zones
    Sunrise Wind would establish clearance and shutdown zones for 
vibratory pile driving activities associated with sheet pile 
installation (Table 43.) and pneumatic hammering for casing pipe 
installation (Table 44.). If a marine mammal is observed entering or is 
observed within the respective zones, activities will not commence 
until the animal has exited the zone or a specific amount of time has 
elapsed since the last sighting (i.e., 30 minutes for large whales and 
15 minutes for dolphins, porpoises, and pinnipeds). If a marine mammal 
is observed entering or within the respective shutdown zone after 
vibratory pile driving or pneumatic hammering has begun, the PSO will 
call for a temporary cessation of the activity. Pile driving or 
hammering must not be restarted until either the marine mammal(s) has 
voluntarily left the specific clearance zones and has been visually 
confirmed beyond that clearance zone or when specific time periods have 
elapsed with no further sightings or acoustic detections have occurred 
(i.e., 15 minutes for small odontocetes and 30 minutes for all other 
marine mammal species). Because a vibratory hammer can grip a pile 
without operating, pile instability should not be a concern and no 
caveat for re-starting pile driving due to pile instability is 
proposed.

    Table 43--Distances to Harassment Thresholds and Mitigation Zones \a\ During Vibratory Sheet Pile Driving
----------------------------------------------------------------------------------------------------------------
                                                      Level A
                                                    harassment        Level B     Clearance zone   Shutdown zone
              Marine mammal species                (SELcum) (m)   harassment (m)        (m)             (m)
 
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans:
    Fin whale *.................................               5           9,740             200              50
    Minke whale.................................               5           9,740             200              50
    Sei whale *.................................               5           9,740             200              50
    Humpback whale..............................               5           9,740             200              50
    North Atlantic right whale *................               5           9,740             200              50
    Blue whale *................................               5           9,740             200              50
Mid-frequency cetaceans:
    Sperm whale *...............................  ..............           9,740             200              50
    Atlantic white-sided dolphin................  ..............           9,740             200              50
    Atlantic spotted dolphin....................  ..............           9,740             200              50
    Common dolphin..............................  ..............           9,740             200              50
    Risso's dolphin.............................  ..............           9,740             200              50

[[Page 9067]]

 
    Bottlenose dolphin..........................  ..............           9,740             200              50
    Pilot whales................................  ..............           9,740             200              50
High-frequency cetaceans:
    Harbor porpoise.............................             190           9,740             200             200
Phocid Pinnipeds (in water):
    Gray seal...................................              10           9,740             200              10
    Harbor seal.................................              10           9,740             200              10
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ The original mitigation and monitoring distances are found in Table 18 in Sunrise Wind's PSMMP; however,
  NMFS has slightly rounded/modified some of these ranges for PSO clarity.


 Table 44--Distances to Harassment Thresholds and Mitigation Zones \a\ During Impact Installation of the Casing
                                                      Pipe
----------------------------------------------------------------------------------------------------------------
                                                      Level A
                                                    harassment        Level B     Clearance zone   Shutdown zone
              Marine mammal species                (SELcum) (m)   harassment (m)        (m)             (m)
 
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans:
    Fin whale *.................................           3,870             920             500             500
    Minke whale.................................           3,870             920             500             500
    Sei whale *.................................           3,870             920             500             500
    Humpback whale..............................           3,870             920             500             500
    North Atlantic right whale *................           3,870             920             500             500
    Blue whale *................................           3,870             920             500             500
Mid-frequency cetaceans:
    Sperm whale *...............................             230             920             100             100
    Atlantic white-sided dolphin................             230             920             100             100
    Atlantic spotted dolphin....................             230             920             100             100
    Common dolphin..............................             230             920             100             100
    Risso's dolphin.............................             230             920             100             100
    Bottlenose dolphin..........................             230             920             100             100
    Pilot whales................................             230             920             100             100
High-frequency cetaceans:
    Harbor porpoise.............................           3,950             920             500             500
Phocid Pinnipeds (in water):
    Gray seal...................................           1,290             920             100             100
    Harbor seal.................................           1,290             920             100             100
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.

UXO/MEC Detonations

    For UXO/MEC detonations, NMFS is proposing to include the following 
mitigation requirements, which are described in detail below: As Low as 
Reasonably Practical Approach (ALARP); seasonal and daily restrictions; 
the use of noise abatement systems; the use of PSOs and PAM operators 
to visually and acoustically monitor for marine mammals; and the 
implementation of clearance zones.
As Low as Reasonably Practicable (ALARP) Approach
    For any UXOs/MECs that require removal, Sunrise Wind would be 
required to implement the As Low as Reasonably Practicable (ALARP) 
process. This process would require Sunrise Wind to undertake ``lift-
and-shift'' (i.e., physical removal) and then lead up to in situ 
disposal, which could include low-order (deflagration) to high-order 
(detonation) methods of removal. Another potential approach involves 
the cutting of the UXO/MEC to extract any explosive components. 
Implementing the ALARP approach would minimize potential impacts to 
marine mammals as UXOs/MECs would only be detonated as a last resort.
Seasonal and Daily Restrictions
    Sunrise Wind would be limited to detonating a total of three UXOs/
MECs between May 1 and November 31 to reduce impacts to North Atlantic 
right whales during peak occurrence periods. Furthermore, UXO/MEC 
detonation would be limited to daylight hours only to ensure that 
visual PSOs can confirm appropriate clearance of the site prior to 
detonation events.
Noise Abatement Systems
    Sunrise Wind would be required to use a noise abatement system 
during all UXO/MEC detonations, should detonations be determined to be 
necessary. Although the exact level of noise attenuation that can be 
achieved by noise abatement systems is unknown, available data from 
Bellmann et al. (2020) and Bellmann and Betke (2021) provide a 
reasonable expectation that the noise abatement systems would be able 
to achieve at least 10 dB attenuation. SFV would be required for all 
detonation events to verify the modeled distances, assuming 10 dB 
attenuation, are representative of the sound fields generated during 
detonations. This level of noise reduction would provide substantial 
reductions in impact zones for low-frequency cetaceans, such as the 
North Atlantic right whale. For example,

[[Page 9068]]

assuming the largest UXO/MEC charge weight (454 kg; E12) at a depth of 
45 m, 10 dB of attenuation reduces the Level A harassment (PTS) zone 
from 243 km\2\ to approximately 45 km\2\. The Level B harassment zone, 
given the same parameters, would be decreased from 1,158 km\2\ to 445 
km\2\. However, and as previously stated in this proposed rule, Sunrise 
Wind does not expect that all 3 of the potential UXOs/MECs would be of 
the largest charge weight; this weight was used as a conservative 
option in estimating exposures and take of marine mammals.
Use of PSOs and PAM Operators
    PSOs would monitor clearance zones in vessels and when the 
clearance zone is larger than 5 km, aircraft. Prior to the UXO/MEC 
detonation, at least two PSOs per observing platform (i.e., vessels, 
plane) located at the best vantage points would monitor the clearance 
zone for 60 minutes, continue monitoring during the detonation, and for 
30 minutes following the event. The clearance zones must be fully 
visible for at least 60 minutes and all marine mammal(s) must be 
confirmed to be outside of the clearance zone for at least 30 minutes 
immediately prior to initiation of either activity.
    In addition to visual monitoring, real-time PAM monitoring is also 
proposed. A PAM operator would be stationed on at least one of the 
dedicated monitoring vessels in addition to the PSOs or located 
remotely/onshore to acoustically monitor a zone that encompasses a 
minimum of a 10 km radius around the source. PAM would be conducted for 
at least 60 minutes prior to detonation and the zone must be 
acoustically clear during this time.
    In the case of visual or acoustic detection, the Lead PSO will be 
responsible for requesting the designated crewmember to implement a 
delay in UXO detonation.
Clearance Zones
    Sunrise Wind proposed to clear a 3.78-km radius zone around the 
detonation site prior to detonations using both visual and acoustic 
monitoring methods. This distance represents the modeled Level A (PTS) 
harassment zone for low-frequency cetaceans (i.e., large whales) 
assuming the largest 454-kg charge weight and use of a bubble curtain 
(Table 45.). However, NMFS is proposing to require more protective zone 
sizes in order to ensure the least practicable adverse impact, which 
includes minimizing the potential for TTS. As stated above, it is not 
currently known how easily Sunrise Wind will be able to identify UXO/
MEC charge weights in the field. For this reason, NMFS proposes to 
require Sunrise Wind to clear a zone extending 10 km for large whales, 
2 km for delphinids, 10 km for harbor porpoises, and 5 km for seals 
(Table 45.). These zones are based on (but not equal to) the largest 
TTS threshold distances for a 454-kg charge at any site modeled. 
However, NMFS notes that these zone sizes may be adjusted based on SFV 
and confirmation of UXO/MEC/doner charge sizes. Moreover, if Sunrise 
Wind indicates to NMFS they will be able to easily and reliably 
identify charge weights in the field, NMFS would develop clearance 
zones in the final rule for each charge weight analyzed.
    If a marine mammal is observed entering or within the clearance 
zone prior to denotation, the activity would be delayed. Only when the 
marine mammals have been confirmed to have voluntarily left the 
clearance zones and been visually confirmed to be beyond the clearance 
zone, or when 60 minutes have elapsed without any redetections for 
whales (including the North Atlantic right whale) or 30 minutes have 
elapsed without any subsequent detections of delphinids, harbor 
porpoises, or seals may detonation of UXOs/MECs occur.

 Table 45--Largest Modeled Harassment and Clearance Zones for UXO/MEC Detonation of E12 (454 kg) Charge Assuming
                                              10 dB Noise Abatement
----------------------------------------------------------------------------------------------------------------
                                                                    Distances to zones for E12 (454 kg) UXO/MEC
                                                                               charge weight \a\ \b\
                                                                 -----------------------------------------------
                      Marine mammal species                           Level A         Level B
                                                                    harassment      harassment       Clearance
                                                                     zone (m)        zone (m)        zones (m)
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Fin whale *.................................................           3,700          11,800          10,000
    Minke whale.................................................
    Sei whale *.................................................
    Humpback whale..............................................
    North Atlantic right whale *................................
    Blue whale *................................................
Odontocetes:
    Sperm whale *...............................................         \b\ 500           2,500           2,000
    Atlantic white-sided dolphin................................
    Atlantic spotted dolphin....................................
    Common dolphin..............................................
    Risso's dolphin.............................................
    Bottlenose dolphin..........................................
    Long-finned pilot whale.....................................
Harbor porpoise.................................................           6,200          13,700          10,000
Phocid Pinnipeds (in water):
    Gray seal...................................................           1,500       \b\ 7,100           5,000
    Harbor seal.................................................
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ At time of preparing this proposed rule, Sunrise Wind has not provided NMFS evidence they will be able to
  reliably determine the charge weight of any UXO/MEC that must be detonated; therefore, NMFS assumes all UXO/
  MECs could be of the largest size modeled. If Sunrise Wind provides information they can detect charge weights
  in the field prior to issuance of the final rule, if issued, NMFS may modify the clearance zone to ones based
  on charge weights distances to PTS and TTS. Distances to PTS and TTS thresholds have been identified by
  Sunrise Wind in Appendix B of their application.
\b\ The original mitigation and monitoring distances are found in Sunrise Wind's UXO/MEC modeling report (Hannay
  and Zykov, 2022); however, NMFS has rounded these ranges for PSO clarity.


[[Page 9069]]

HRG Surveys

    For HRG surveys, NMFS is proposing to include the following 
mitigation requirements, which are described in detail below, for all 
HRG survey activities using boomers, sparkers, and CHIRPs: the use of 
PSOs; the implementation of clearance, shutdown, and vessel separation 
zones; and ramp-up of survey equipment.
    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 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, shutdown, clearance, and 
ramp-up procedures are not proposed to be conducted during HRG surveys 
utilizing only non-impulsive sources (e.g., Ultra-Short BaseLine (USBL) 
and other parametric sub-bottom profilers) with exception to usage of 
CHIRPS and other non-parametric sub-bottom profilers. 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. We have provided a thorough description 
of our reasoning for not requiring PAM during HRG surveys in several 
Federal Register notices (e.g., 87 FR 40796, July 8, 2022; 87 FR 52913, 
August 3, 2022; 87 FR 51356, August 22, 2022).
Seasonal and Daily Restrictions
    Given the potential impacts to marine mammals from exposure to HRG 
survey noise sources are relatively minor (e.g., limited to Level B 
harassment) and that the distances to the Level B harassment isopleth 
is very small (maximum distance is 141 m), NMFS is not proposing to 
implement any seasonal or time-of-day restrictions for HRG surveys.
    Although no temporal restrictions are proposed, NMFS would require 
Sunrise Wind to deactivate acoustic sources during periods where no 
data is being collected except as determined necessary for testing. Any 
unnecessary use of the acoustic source would be avoided.
Use of PSOs
    During all HRG survey activities using boomers, sparkers, and 
CHIRPS, one PSO would be required to monitor during daylight hours and 
two would be required to monitor during nighttime hours per vessel. 
PSOs would begin visually monitoring 30 minutes prior to the initiation 
of the specified acoustic source (i.e., ramp-up, if applicable) through 
30 minutes after the use of the specified acoustic source has ceased. 
PSOs would be required to monitor the appropriate clearance and 
shutdown zones. These zones would be based around the radial distance 
from the acoustic source and not from the vessel.
Clearance, Shutdown, and Vessel Separation Zones
    Sunrise Wind would be required to implement a 30-minute clearance 
period of the clearance zones (Table 46) 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. The 
clearance zones would be monitored by PSOs using the appropriate visual 
technology. 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) has 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). In any 
case when the clearance process has begun in conditions with good 
visibility, including via the use of night vision equipment (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, Sunrise Wind would be required to 
shut down boomers, sparkers, and CHIRPs if a marine mammal enters a 
respective shutdown zone (Table 46). In cases when the shutdown zones 
become obscured for brief periods due to inclement weather, survey 
operations would be allowed to continue (i.e., no shutdown is required) 
so long as no marine mammals have been detected. The use of boomers, 
sparkers, and CHIRPS would 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 boomers, 
sparkers, and CHIRPs that cannot be identified as a non-North Atlantic 
right whale would be treated as if it were a North Atlantic right 
whale.
    The shutdown requirement would be waived for small delphinids of 
the following genera: Delphinus, Stenella, Lagenorhynchus, and 
Tursiops. Specifically, if a delphinid from the specified genera is 
visually detected approaching the vessel (i.e., to bow-ride) or towed 
equipment, shutdown would not be required. Furthermore, if there is 
uncertainty regarding identification of a marine mammal species (i.e., 
whether the observed marine mammal(s) belongs to one of the delphinid 
genera for which shutdown is waived), the PSOs would use their best 
professional judgment in making the decision to call for a shutdown. 
Shutdown would be required if a delphinid that belongs to a genus other 
than those specified is detected in the shutdown zone.
    If a boomer, sparker, or CHIRP is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
would be allowed to be activated again without ramp-up only if (1) PSOs 
have maintained constant observation, and (2) no additional detections 
of any marine mammal occurred within the respective shutdown zones. If 
a boomer, sparker, or CHIRP was shut down for a period longer than 30 
minutes, then all clearance and ramp-up procedures would be required, 
as previously described.

                  Table 46--Harassment Threshold Ranges and Mitigation Zones During HRG Surveys
----------------------------------------------------------------------------------------------------------------
                                                    Level B harassment zone (m)
                                                 -------------------------------- Clearance zone   Shutdown zone
              Marine mammal species                   Boomer/                           (m)             (m)
                                                      sparker         CHIRPs
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans:
    Fin whale *.................................             141              48             100             100

[[Page 9070]]

 
    Minke whale.................................  ..............  ..............             100             100
    Sei whale *.................................  ..............  ..............             100             100
    Humpback whale..............................  ..............  ..............             100             100
    North Atlantic right whale *................  ..............  ..............             500             500
    Blue whale *................................  ..............  ..............             100             100
Mid-frequency cetaceans:
    Sperm whale *...............................             141              48             100             100
    Atlantic white-sided dolphin................  ..............  ..............             100             n/a
    Atlantic spotted dolphin....................  ..............  ..............             100             n/a
    Common dolphin..............................  ..............  ..............             100             n/a
    Risso's dolphin.............................  ..............  ..............             100             100
    Bottlenose dolphin..........................  ..............  ..............             100             n/a
    Long-finned pilot whale.....................  ..............  ..............             100             100
High-frequency cetaceans:
    Harbor porpoise.............................             141              48             100             100
Phocid Pinnipeds (in water):
    Gray seal...................................             141              48             100             100
    Harbor seal.................................
----------------------------------------------------------------------------------------------------------------
Note: n/a = no shutdown zone mitigation will be applied as these species are known to bow-ride.
* Denotes species is listed under the Endangered Species Act.

Ramp-Up
    At the start or restart of the use of boomers, sparkers, and/or 
CHIRPs, a ramp-up procedure would be required unless the equipment 
operates on a binary on/off switch. A ramp-up procedure, involving a 
gradual increase in source level output, is required at all times as 
part of the activation of the acoustic source when technically 
feasible. Operators would ramp up sources to half power for 5 minutes 
and then proceed to full power. Prior to a ramp-up procedure starting, 
the operator would have to notify the Lead PSO of the planned start of 
the ramp-up. This notification time would not be less than 60 minutes 
prior to the planned ramp-up activities as all relevant PSOs would need 
the appropriate 30 minute period to monitor prior to the initiation of 
ramp-up. Prior to ramp-up beginning, the operator must receive 
confirmation from the PSO that the clearance zone is clear of any 
marine mammals. All ramp-ups would be scheduled to minimize the overall 
time spent with the source being activated. The ramp-up procedure must 
be used at the beginning of HRG survey activities or after more than a 
30-minute break in survey activities using the specified HRG equipment 
to provide additional protection to marine mammals in or near the 
survey area by allowing them to vacate the area prior to operation of 
survey equipment at full power.
    Sunrise Wind would not initiate ramp-up until the clearance process 
has been completed (see Clearance and Shutdown Zones section above). 
Ramp-up activities would be delayed if a marine mammal(s) enters its 
respective clearance zone. Ramp-up would only be reinitiated if the 
animal(s) has been observed exiting its respective shutdown zone or 
until additional time has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and seals, and 30 minutes for all other 
species).
ASV Use
    Should Sunrise Wind use an ASV for HRG survey operations, the 
following measures would be implemented:
     When in use, the ASV would be within 800 m (2,625 ft) of 
the primary vessel while conducting survey operations;
     Two PSOs would be stationed aboard the mother vessel at 
the best vantage points to monitor the clearance and shutdown zones 
around the ASV;
     A dual thermal/high definition camera would be installed 
on the mother vessel, facing forward and angled in a direction to 
provide a field of view ahead of the vessel and around the ASV. PSOs 
would monitor the real-time camera output on hand-held tablets. A 
monitor would also be installed on the bridge, displaying the real-time 
image from the thermal/HD camera installed on the ASV itself, providing 
an additional forward field of view from the ASV;
     Night-vision goggles with thermal clip-ons, and a hand-
held spotlight would be used to monitor the ASV during survey 
operations during periods of reduced visibility (e.g., darkness, rain, 
fog).

Fishery Monitoring Surveys

Training
    All crew undertaking the fishery survey activities would be 
required to receive protected species identification training prior to 
activities occurring. Marine mammal monitoring must occur prior to, 
during, and after haul-back and gear must not be deployed if a marine 
mammal is observed in the area. Trawl operations must only start after 
15 minutes of no marine mammal sightings within 1 nm of the sampling 
station.

Gear-Specific Best Management Practices (BMPs)

    Sunrise Wind would be required to undertake BMPs to reduce risks to 
marine mammals during trawl surveys. These include:
     All captains and crew conducting trawl surveys will be 
trained in marine mammal detection and identification;
     Survey vessels will adhere to all vessel mitigation 
measures (see Proposed Mitigation section);
     Marine mammal monitoring will be conducted by the captain 
and/or a member of the scientific crew before (15 minutes prior to 
within 1 nm), during, and after haul back;
     Trawl operations will commence as soon as possible once 
the vessel arrives on station;
     If a marine mammal (other than dolphins and porpoises) is 
sighted within 1 nm of the planned location in the 15 minutes before 
gear deployment,

[[Page 9071]]

Sunrise Wind will delay setting the trawl until marine mammals have not 
been resighted for 15 minutes or Sunrise Wind may move the vessel away 
from the marine mammal to a different section of the sampling area. If, 
after moving on, marine mammals are still visible from the vessel, 
Sunrise Wind may decide to move again or to skip the station;
     Gear will not be deployed if marine mammals are observed 
within the area and if a marine mammal is deemed to be at risk of 
interaction, all gear will be immediately removed;
     Sunrise Wind will maintain visual monitoring effort during 
the entire period of time that trawl gear is in the water (i.e., 
throughout gear deployment, fishing, and retrieval). If marine mammals 
are sighted before the gear is fully removed from the water, Sunrise 
Wind will take the most appropriate action to avoid marine mammal 
interaction;
     Limit tow time to 20 minutes and monitoring for marine 
mammals throughout gear deployment, fishing, and retrieval;
     Sunrise Wind will open the codend of the net close to the 
deck/sorting area to avoid damage to animals that may be caught in 
gear;
     Trawl nets will be fully cleaned and repaired (if damaged) 
before setting again.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures would provide the 
means of affecting the least practicable impact on the affected species 
or stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    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 proposed action area. Effective reporting is critical 
both to compliance as well as ensuring that the most value is obtained 
from the required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
     Mitigation and monitoring effectiveness.
    Separately, monitoring is also regularly used to support mitigation 
implementation, which is referred to as mitigation monitoring, and 
monitoring plans typically include measures that both support 
mitigation implementation and increase our understanding of the impacts 
of the activity on marine mammals.
    During Sunrise Wind's construction activities, visual monitoring by 
NMFS-approved PSOs would be conducted before, during, and after impact 
pile driving, vibratory pile driving and pneumatic hammering, any UXO/
MEC detonations, and HRG surveys. PAM would also be conducted during 
all impact pile driving and UXO/MEC detonations. Observations and 
acoustic detections by PSOs would be used to support the activity-
specific mitigation measures described above. Also, to increase 
understanding of the impacts of the activity on marine mammals, 
observers would record all incidents of marine mammal occurrence at any 
distance from the piling and pneumatic hammering locations, UXO/MEC 
detonation site, and during active HRG acoustic sources, and monitors 
would document all behaviors and behavioral changes, in concert with 
distance from an acoustic source. The required monitoring is described 
below, beginning with PSO measures that are applicable to all 
activities or monitoring and followed by activity-specific monitoring 
requirements.

Protected Species Observer Requirements

    Sunrise Wind would be required to collect sighting data and 
behavioral response data related to construction activities for marine 
mammal species observed in the region of the activity during the period 
in which the activities occur using NMFS-approved visual and acoustic 
PSOs (see Proposed Mitigation section). All observers must be trained 
in marine mammal identification and behaviors and are required to have 
no other construction-related tasks while conducting monitoring. PSOs 
would monitor all clearance and shutdown zones prior to, during, and 
following impact pile driving, vibratory pile driving, pneumatic 
hammering, UXO/MEC detonation, and during HRG surveys using boomers, 
sparkers, and CHIRPs (with monitoring durations specified further 
below). PSOs will also monitor the Level B harassment zones and will 
document any marine mammals observed within these zones, to the extent 
practicable (noting that some zones are too large to fully observe). 
Observers would be located at the best practicable vantage points on 
the pile driving vessel and, where required, on an aerial platform. 
Full details regarding all marine mammal monitoring must be included in 
relevant Plans (e.g., Pile Driving and Marine Mammal Monitoring Plan) 
that, under this proposed action, Sunrise Wind would be required to 
submit to NMFS for approval at least 180 days in advance of the 
commencement of any construction activities.
    The following measures apply to all visual monitoring efforts:
    1. Monitoring must be conducted by NMFS-approved, trained PSOs who 
would be placed at the primary location relevant to the activity (i.e., 
pile driving vessel, pneumatic hammering location, UXO/MEC vessel, HRG 
survey vessel), dedicated PSO vessels (e.g., additional UXO/MEC 
vessel(s) when the detonation area is larger than 2 km), and aerial 
survey plane and must be in positions that allow for the best vantage 
point to monitor for marine mammals and implement the relevant 
clearance and shutdown procedures, when determined to be applicable;

[[Page 9072]]

    2. PSO must be independent third-party observers and must have no 
tasks other than to conduct observational effort, collect data, and 
communicate with and instruct the relevant vessel crew with regard to 
the presence of protected species and mitigation requirements;
    3. During all observation periods related to pile driving (impact 
and vibratory), pneumatic hammering, UXO/MEC detonations, and HRG 
surveys, PSOs would be located at the best vantage point(s) in order to 
ensure 360[deg] visual coverage of the entire clearance and shutdown 
zones around the observing platform and as much of the Level B 
harassment zone as possible while still maintaining a safe work 
environment;
    4. PSOs may not exceed 4 consecutive watch hours, must have a 
minimum 2-hour break between watches, and may not exceed a combined 
watch schedule of more than 12 hours in a single 24-hour period;
    5. PSOs would be required to use appropriate equipment (specified 
below) to monitor for marine mammals. During periods of low visibility 
(e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs would 
be required to use alternative technologies (i.e., infrared or thermal 
cameras) to monitor the shutdown and clearance zones.
    6. PSOs should have the following minimum qualifications:
    a. Visual acuity in both eyes (corrected is permissible) sufficient 
for discernment of moving targets at the water's surface with the 
ability to estimate the target size and distance. The use of binoculars 
is permitted and may be necessary to correctly identify the target(s);
    b. Ability to conduct field observations and collect data according 
to the assigned protocols;
    c. Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    d. Writing skills sufficient to document observations, including 
but not limited to: the number and species of marine mammals observed, 
the dates and times of when in-water construction activities were 
conducted, the dates and time when in-water construction activities 
were suspended to avoid potential incidental injury of marine mammals 
from construction noise within a defined shutdown zone, and marine 
mammal behavior.
    e. Ability to communicate orally, by radio, or in-person, with 
project personnel to provide real-time information on marine mammals 
observed in the area, as necessary.
    Observer teams employed by Sunrise Wind, in satisfaction of the 
mitigation and monitoring requirements described herein, must meet the 
following additional requirements:
    7. At least one observer must have prior experience working as an 
observer.
    8. Other observers may substitute education (a degree in biological 
science or a related field) or training for experience;
    9. One observer will be designated as lead observer or monitoring 
coordinator (``Lead PSO''). This Lead PSO would be required to have a 
minimum of 90 days of at-sea experience working in this role in an 
offshore environment and would be required to have no more than 
eighteen months elapsed since the conclusion of their last at-sea 
experience;
    10. At least one PSO located on platforms (either vessel-based or 
aerial) would be required to have a minimum of 90 days of at-sea 
experience working in this role in an offshore environment and would be 
required to have no more than eighteen months elapsed since the 
conclusion of their last at-sea experience; and
    11. All PSOs must be approved by NMFS. Sunrise Wind would be 
required to submit resumes of the initial set of PSOs necessary to 
commence the project to NMFS OPR for approval at least 60 days prior to 
the first day of in-water construction activities requiring PSOs. 
Resumes would need to include the dates of training and any prior NMFS 
approval as well as the dates and description of their last PSO 
experience and must be accompanied by information documenting their 
successful completion of an acceptable training course. NMFS would 
allow three weeks to approve PSOs from the time that the necessary 
information is received by NMFS after which any PSOs that meet the 
minimum requirements would automatically be considered approved.
    Some Sunrise Wind activities may require the use of PAM, which 
would necessitate the employment of at least one acoustic PSO (aka PAM 
operator) on duty at any given time. PAM operators would be required to 
meet several of the specified requirements described above for PSOs, 
including: 2, 4, 6b-e, 8, 9, 10, and 11. Furthermore, PAM operators 
would be required to complete a specialized training for operating PAM 
systems and must demonstrate familiarity with the PAM system on which 
they would be working.
    PSOs would be able to act as both acoustic and visual observers for 
the project if the individual(s) demonstrates that they have had the 
required level and appropriate training and experience to perform each 
task. However, a single individual would not be allowed to concurrently 
act in both roles or exceed work hours specified in #4 above.
    Sunrise Wind's personnel and PSOs would also be required to use 
available sources of information on North Atlantic right whale presence 
to aid in monitoring efforts. This includes:
    1. Daily monitoring of the Right Whale Sightings Advisory System;
    2. Consulting of the WhaleAlert app; and,
    3. Monitoring of the Coast Guard's VHF Channel 16 throughout the 
day to receive notifications of any sightings and information 
associated with any Dynamic Management Areas to plan construction 
activities and vessel routes, if practicable, to minimize the potential 
for co-occurrence with North Atlantic right whales.
    Additionally, whenever multiple project-associated vessels (of any 
size; e.g., construction survey, crew transfer) are operating 
concurrently, any visual observations of ESA-listed marine mammals must 
be communicated to PSOs and vessel captains associated with other 
vessels to increase situational awareness.
    The following are proposed monitoring and reporting measures that 
NMFS would require specific to each construction activity:

WTG and OCS-DC Foundation Installation

    Sunrise Wind would be required to implement the following 
monitoring procedures during all impact pile driving of WTG and OCS-DC 
foundations.
    During all observations associated with impact pile driving, PSOs 
would use high magnification (7x) binoculars and the naked eye to 
search continuously for marine mammals. At least one PSO on the 
foundation pile driving vessel and secondary dedicated-PSO vessel must 
be equipped with Big Eye binoculars (e.g., 25 x 50; 2,7 view angle; 
individual ocular focus; height control) of appropriate quality. These 
would be pedestal-mounted on the deck at the most appropriate vantage 
point that provides optimal sea surface observation and PSO safety.
    Sunrise Wind would be required to have a minimum of four PSOs 
actively observing marine mammals before, during, and after (specific 
times described below) the installation of foundation piles 
(monopiles). At least two PSOs must be actively observing on the pile 
driving vessel while at least two

[[Page 9073]]

PSOs are actively observing on a secondary, PSO-dedicated vessel. 
Concurrently, at least one acoustic PSO (i.e., PAM operator) must be 
actively monitoring for marine mammals before, during and after impact 
pile driving.
    As described in the Proposed Mitigation section, if the minimum 
visibility zone cannot be visually monitored at all times, pile driving 
operations may not commence or, if active, must shutdown, unless 
Sunrise Wind determines 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.
    To supplement visual observation efforts, Sunrise Wind would 
utilize at least one PAM operator before, during, and after pile 
installation. This PAM operator would assist the PSOs in ensuring full 
coverage of the clearance and shutdown zones. All on-duty visual PSOs 
would remain in contact with the on-duty PAM operator, who would 
monitor the PAM systems for acoustic detections of marine mammals in 
the area. In some cases, the PAM operator and workstation may be 
located onshore or they may be located on a vessel. In either 
situation, PAM operators would maintain constant and clear 
communication with visual PSOs on duty regarding detections of marine 
mammals that are approaching or within the applicable zones related to 
impact pile driving. Sunrise Wind would utilize PAM to acoustically 
monitor the clearance and shutdown zones (and beyond for situational 
awareness), and would record all detections of marine mammals and 
estimated distance, when possible, to the activity (noting whether they 
are in the Level A harassment or Level B harassment zones). To 
effectively utilize PAM, Sunrise Wind would implement the following 
protocols:
     PAM operators would be stationed on at least one of the 
dedicated monitoring vessels in addition to the PSOs, or located 
remotely/onshore.
     PAM operators would have completed specialized training 
for operating PAM systems prior to the start of monitoring activities, 
including identification of species-specific mysticete vocalizations 
(e.g., North Atlantic right whales).
     The PAM operator(s) on-duty would monitor the PAM systems 
for acoustic detections of marine mammals that are vocalizing in the 
area.
     Any detections would be conveyed to the PSO team and any 
PSO sightings would be conveyed to the PAM operator for awareness 
purposes, and to identify if mitigation is to be triggered.
     For real-time PAM systems, at least one PAM operator would 
be designated to monitor each system by viewing data or data products 
that are streamed in real-time or near real-time to a computer 
workstation and monitor located on a project vessel or onshore.
     The PAM operator would inform the Lead PSO on duty of 
marine mammal detections approaching or within applicable ranges of 
interest to the pile driving activity via the data collection software 
system (i.e., Mysticetus or similar system), who would be responsible 
for requesting that the designated crewmember implement the necessary 
mitigation procedures (i.e., delay or shutdown).
     Acoustic monitoring during nighttime and low visibility 
conditions during the day would complement visual monitoring (e.g., 
PSOs and thermal cameras) and would cover an area of at least the Level 
B harassment zone around each foundation.
    All PSOs and PAM operators would be required to begin monitoring 60 
minutes prior to and during all impact pile driving and for 30 minutes 
after impact driving. However, PAM operators must review acoustic data 
from the previous 24 hours as well. As described in the Proposed 
Mitigation section, impact pile driving of monopiles would only 
commence when the minimum visibility zone (extending 2.3 km from the 
pile during summer months and 4.4 km during December for WTG foundation 
installations, and 1.6 km during summer months and 2.7 km during 
December for OCS-DC foundation installations) is fully visible (e.g., 
not obscured by darkness, rain, fog, etc.) and the clearance zones are 
clear of marine mammals for at least 30 minutes, as determined by the 
Lead PSO, immediately prior to the initiation of impact pile driving.
    For North Atlantic right whales, any visual (regardless of 
distance) or acoustic detection would trigger a delay to the 
commencement of pile driving. In the event that a large whale is 
sighted or acoustically detected that cannot be confirmed as a non-
North Atlantic right whale species, it must be treated as if it were a 
North Atlantic right whale. Following a shutdown, monopile installation 
may not recommence until the minimum visibility zone is fully visible 
and the clearance zone is clear of marine mammals for 30 minutes and no 
marine mammals have been detected acoustically within the PAM clearance 
zone for 30 minutes.
    Sunrise Wind must prepare and submit a Pile Driving and Marine 
Mammal Monitoring Plan to NMFS for review and approval at least 180 
days before the start of any pile driving. The plans must include final 
pile driving project design (e.g., number and type of piles, hammer 
type, noise abatement systems, anticipated start date, etc.) and all 
information related to PAM PSO monitoring protocols for pile-driving 
and visual PSO protocols for all activities.

Cable Landfall Construction

    Sunrise Wind would be required to implement the following 
procedures during all vibratory pile driving activities associated with 
sheet pile installation and removal and pneumatic hammering 
installation and removal of casing pipes.
    During all observation periods related to vibratory pile driving or 
pneumatic hammering, PSOs must use high-magnification (25x), standard 
handheld (7x) binoculars, and the naked eye to search continuously for 
marine mammals.
    Sunrise Wind would be required to have a minimum of two PSOs on 
active duty during any installation and removal of the temporary sheet 
piles or casing pipe. These PSOs would always be located at the best 
vantage point(s) on the vibratory pile driving or pneumatic hammering 
platform or secondary platform in the immediate vicinity of the primary 
platforms in order to ensure that appropriate visual coverage is 
available of the entire visual clearance zone and as much of the Level 
B harassment zone as possible. NMFS would not require the use of PAM 
for these activities.
    PSOs would monitor the clearance zone for the presence of marine 
mammals for 30 minutes before, throughout the installation of the sheet 
piles or casing pipes, and for 30 minutes after the activities have 
ceased. Sheet pile or casing pipe installation may only commence when 
visual clearance zones are fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and clear of marine mammals, as determined 
by the Lead PSO, for at least 30 minutes immediately prior to 
initiation of impact or vibratory pile driving.

UXO/MEC Detonations

    Sunrise Wind would be required to implement the following 
procedures during all UXO/MEC detonations.
    During all observation periods related to UXO/MEC detonation, PSOs 
must use high-magnification (25x), standard handheld (7x) binoculars, 
and the naked eye to search continuously for marine mammals. PSOs 
located on the UXO/MEC monitoring vessel((s) would also

[[Page 9074]]

be equipped with ``Big Eye'' binoculars (e.g., 25 x 150; 2.7 view 
angle; individual ocular focus; height control). These would be mounted 
on a pedestal on the deck of the vessel(s) at the most appropriate 
vantage to provide for optimal sea surface observation, as well as 
safety of the PSOs.
    For detonation zones (based on UXO/MEC charge weight) larger than 2 
km, a secondary vessel would be used for marine mammal monitoring. In 
the event a secondary vessel is needed, two PSOs would be located at an 
appropriate vantage point on this vessel and would maintain watch 
during the same time period as the PSOs on the primary monitoring 
vessel. For detonation zones larger than 5 km, Sunrise Wind would also 
be required to perform an aerial survey. At least two PSOs must be 
deployed on the plane during the aerial survey that would occur before, 
during, and after UXO/detonation events. Sunrise Wind would be required 
to ensure that the clearance zones are fully (100 percent) monitored 
prior to, during, and after detonations.
    As UXO/MEC detonation would only occur during daylight hours, PSOs 
would only need to monitor during the period between civil twilight 
rise and set. All PSOs and PAM operators would be required to begin 
monitoring 60 minutes prior to the UXO/MEC detonation event, during the 
event, and after for 30 minutes. Detonation may only commence when 
visual clearance zones are fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and clear of marine mammals, as determined 
by the Lead PSO, for at least 30 minutes immediately prior to 
detonation.
    The PAM operator(s) would be stationed on one of the dedicated 
monitoring vessels but may also potentially be located remotely 
onshore, although the latter alternative is subject to approval by 
NMFS. When real-time PAM is used, at least one PAM operator would be 
designated to monitor each system by viewing the data or data products 
that would be streamed in real-time or near real-time to a computer 
workstation and monitor, which would be located either on an Sunrise 
Wind vessel or onshore. The PAM operator would work in coordination 
with the visual PSOs to ensure the clearance zone is clear of marine 
mammals (both visually and acoustically) prior to the detonation. The 
PAM operator would inform the Lead PSO on-duty of any marine mammal 
detections approaching or within the clearance zones via the data 
collection software (i.e., Mysticetus or a similar system), who would 
then be responsible for requesting the necessary mitigation procedure 
(i.e., delay). The PAM operator would monitor the clearance zone for 
large whales and beyond the zone as possible (dependent on the 
detection radius of the PAM monitoring equipment).
    Sunrise Wind must prepare and submit a UXO/MEC and Marine Mammal 
Monitoring Plan to NMFS for review and approval at least 180 days 
before the start of any UXO/MEC. The plans must include final project 
design and all information related to visual and PAM PSO monitoring 
protocols for UXO/MEC detonations.

HRG Surveys

    Sunrise Wind would be required to implement the following 
procedures during all HRG surveys.
    During all observation periods, PSOs must use standard handheld 
(7x) binoculars and the naked eye to search continuously for marine 
mammals.
    Between four and six PSOs would be present on every 24-hour survey 
vessel, and two to three PSOs would be present on every 12-hour survey 
vessel. Sunrise Wind would be required to have at least one PSO on 
active duty during HRG surveys that are conducted during daylight hours 
(i.e., from 30 minutes prior to sunrise through 30 minutes following 
sunset) and at least two PSOs during HRG surveys that are conducted 
during nighttime hours.
    All PSOs would begin monitoring 30 minutes prior to the activation 
of boomers, sparkers, or CHIRPs; throughout use of these acoustic 
sources, and for 30 minutes after the use of the acoustic sources has 
ceased.
    Given that multiple HRG vessels may be operating concurrently, any 
observations of marine mammals would be required to be communicated to 
PSOs on all nearby survey vessels.
    Ramp-up of boomers, sparkers, and CHIRPs would only commence when 
visual clearance zones are fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and clear of marine mammals, as determined 
by the Lead PSO, for at least 30 minutes immediately prior to 
initiation of survey activities utilizing the specified acoustic 
sources.
    During daylight hours when survey equipment is not operating, 
Sunrise Wind would ensure that visual PSOs conduct, as rotation 
schedules allow, observations for comparison of sighting rates and 
behavior with and without use of the specified acoustic sources. Off-
effort PSO monitoring must be reflected in the monthly PSO monitoring 
reports.

Marine Mammal Passive Acoustic Monitoring

    As described previously, Sunrise Wind would be required to utilize 
a PAM system to supplement visual monitoring for all monopile 
installations as well as during all UXO/MEC detonations. PAM operators 
may be on watch for a maximum of four consecutive hours followed by a 
break of at least two hours between watches. Again, 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.
    The PAM system must be monitored by a minimum of one PAM operator 
beginning at least 60 minutes prior to soft-start of impact pile 
driving of monopiles and UXO/MEC detonation, at all times during 
monopile installation and UXO/MEC detonation and 30 minutes post-
completion of both activities. PAM operators must immediately 
communicate all detections of marine mammals at any distance (i.e., not 
limited to the Level B harassment zones) to visual PSOs, including any 
determination regarding species identification, distance, and bearing 
and the degree of confidence in the determination.
    PAM systems may be used for real-time mitigation monitoring. The 
requirement for real-time detection and localization limits the types 
of PAM technologies that can be used to those systems that are either 
cabled, satellite, or radio-linked. It is most likely that Sunrise Wind 
would deploy autonomous or moored-remote PAM devices, including 
sonobuoy arrays or similar retrievable buoy systems. The system chosen 
will dictate the design and protocols of the PAM operations. Sunrise 
Wind is not considering seafloor cabled PAM systems, in part due to 
high installation and maintenance costs, environmental issues related 
to cable laying, and the associated permitting complexities. For a 
review of the PAM systems Sunrise Wind is considering, see Appendix 4 
of the Protected Species Mitigation and Monitoring Plan included in 
Sunrise Wind's ITA application.
    Towed PAM systems may be utilized for the Sunrise Wind project only 
if additional PAM systems are necessary. Towed systems consist of 
cabled hydrophone arrays that would be deployed from a vessel and then 
typically monitored from the tow vessel. Notably, several challenges 
exist when using a towed PAM system (i.e., the tow vessel may not be 
fit for the purpose as it may be towing other equipment,

[[Page 9075]]

operating sound sources, or working in patterns not conducive to 
effective PAM). Furthermore, detection and localization capabilities 
for low-frequency cetacean calls (i.e., mysticete species) can be 
difficult in a commercial deployment setting. Alternatively, these 
systems have many advantages, as they are often low cost to operate, 
have high mobility, and are fairly easy and reliable to operate. These 
types of systems also work well in conjunction with visual monitoring 
efforts.
    Sunrise Wind plans to deploy PAM arrays specific for mitigation and 
monitoring of marine mammals outside of the shutdown zone to optimize 
the PAM system's capabilities to monitor for the presence of animals 
potentially entering these zones. The exact configuration and number of 
PAM devices would depend on the size of the zone(s) being monitored, 
the amount of noise expected in the area, and the characteristics of 
the signals being monitored. More closely spaced hydrophones would 
allow for more directionality and, perhaps, range to the vocalizing 
marine mammals; however, this approach would add additional costs and 
greater levels of complexity to the project. Mysticetes, which would 
produce relatively loud and lower-frequency vocalizations, may be able 
to be heard with fewer hydrophones spaced at greater distances. 
However, detecting smaller cetaceans (such as mid-frequency delphinids; 
odontocetes) may necessitate that more hydrophones be spaced closer 
together given the shorter propagation range of the shorter, mid-
frequency acoustic signals (e.g., whistles and echolocation clicks). As 
there are no ``perfect fit'' single optimal array configurations, these 
set-ups would need to be considered on a case-by-case basis.
    A Passive Acoustic Monitoring (PAM) Plan must be submitted to NMFS 
for review and approval at least 180 days prior to the planned start of 
monopile installations. PAM should follow standardized measurement, 
processing methods, reporting metrics, and metadata standards for 
offshore wind (Van Parijs et al., 2021). The plan must describe all 
proposed PAM equipment, procedures, and protocols. However, NMFS 
considers PAM usage for every project on a case-by-case basis and would 
continue discussions with Sunrise Wind regarding selection of the PAM 
system that is most appropriate for the proposed project. The 
authorization to take marine mammals would be contingent upon NMFS' 
approval of the PAM Plan.

Acoustic Monitoring for Sound Field and Harassment Isopleth 
Verification (SFV)

    During the installation of the first three monopile foundations and 
during all UXO/MEC detonations, Sunrise Wind must empirically determine 
source levels, the ranges to the isopleths corresponding to the Level A 
harassment and Level B harassment thresholds, and the transmission loss 
coefficient(s). Sunrise Wind may also estimate ranges to the Level A 
harassment and Level B harassment isopleths by extrapolating from in 
situ measurements conducted at several distances from the monopile 
being driven and UXO/MEC being detonated. Sunrise Wind must measure 
received levels at a standard distance of 750 m from the monopiles and 
at both the presumed modeled Level A harassment and Level B harassment 
isopleth ranges or an alternative distance(s) as agreed to in the SFV 
Plan.
    If acoustic field measurements collected during installation of 
foundation piles or UXO detonation indicate ranges to the isopleths 
corresponding to Level A harassment and Level B harassment thresholds 
are greater than the ranges predicted by modeling (assuming 10 dB 
attenuation), Sunrise Wind must implement additional noise mitigation 
measures prior to installing the next monopile or detonating any 
additional UXOs/MECs. Initial additional measures may include improving 
the efficacy of the implemented noise mitigation technology (e.g., BBC, 
DBBC) and/or modifying the piling schedule to reduce the sound source. 
Each sequential modification would be evaluated empirically by acoustic 
field measurements. In the event that field measurements indicate 
ranges to isopleths corresponding to Level A harassment and Level B 
harassment thresholds are greater than the ranges predicted by modeling 
(assuming 10 dB attenuation), NMFS may expand the relevant harassment, 
clearance, and shutdown zones and associated monitoring protocols. If 
harassment zones are expanded beyond an additional 1,500 m, additional 
PSOs would be deployed on additional platforms with each observer 
responsible for maintaining watch in no more than 180[deg] and of an 
area with a radius no greater than 1,500 m.
    If acoustic measurements indicate that ranges to isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds are less than the ranges predicted by modeling (assuming 10 
dB attenuation), Sunrise Wind may request a modification of the 
clearance and shutdown zones for impact pile driving of monopiles and 
for detonation of UXOs/MECs. For NMFS to consider a modification 
request, Sunrise Wind would have had to conduct SFV on three or more 
monopiles and on all detonated UXOs/MECs thus far to verify that zone 
sizes are consistently smaller than those predicted by modeling 
(assuming 10 dB attenuation). In addition, if a subsequent monopile 
installation location is selected that was not represented by previous 
three locations (i.e., substrate composition, water depth), SFV would 
be required. Furthermore, if a subsequent UXO/MEC charge weight is 
encountered and/or detonation location is selected that was not 
representative of the previous locations (i.e., substrate composition, 
water depth), SFV would also be required. Upon receipt of an interim 
SFV report, NMFS may adjust zones (i.e., Level A harassment, Level B 
harassment, clearance, shutdown, and/or minimum visibility zone) to 
reflect SFV measurements. The shutdown and clearance zones for pile 
driving would be equivalent to the measured range to the Level A 
harassment isopleths plus 10 percent (shutdown zone) and 20 percent 
(clearance zone), rounded up to the nearest 100 m for PSO clarity. The 
minimum visibility zone would be based on the largest measured distance 
to the Level A harassment isopleth for large whales. Regardless of SFV, 
a North Atlantic right whale detected at any distance by PSOs would 
continue to result in a delay to the start of pile driving. Similarly, 
if pile driving has commenced, shutdown would be called for in the 
event a right whale is observed at any distance. That is, the visual 
clearance and shutdown criteria for North Atlantic right whales would 
not change, regardless of field acoustic measurements. The Level B 
harassment zone would be equal to the largest measured range to the 
Level B harassment isopleth.
    The SFV plan must also include how operational noise would be 
monitored. Sunrise Wind would be required to estimate source levels (at 
10 m from the operating foundation) based on received levels measured 
at 50 m, 100 m, and 250 m from each foundation monitored (minimum of 3 
WTG and the OCS-DC). These data must be used to identify estimated 
transmission loss rates. Operational parameters (e.g., direct drive/
gearbox information, turbine rotation rate) as well as sea state 
conditions and information on nearby anthropogenic activities (e.g., 
vessels

[[Page 9076]]

transiting or operating in the area) must be reported.
    Sunrise Wind must submit a SFV Plan at least 180 days prior to the 
planned start of impact pile driving and any UXO/MEC detonation 
activities. The plan must describe how Sunrise Wind would ensure that 
the first three monopile foundation installation sites selected and 
each UXO/MEC detonation scenario (i.e., charge weight, location) 
selected for SFV are representative of the rest of the monopile 
installation sites and UXO/MEC scenarios. Sunrise Wind must include 
information on how additional sites/scenarios would be selected for SFV 
should it be determined that these sites/scenarios are not 
representative of all other monopile installation sites and UXO/MEC 
detonations. The plan must also include the methodology for collecting, 
analyzing, and preparing SFV data for submission to NMFS. The plan must 
describe how the effectiveness of the sound attenuation methodology 
would be evaluated based on the results. Sunrise Wind must also 
provide, as soon as they are available but no later than 48 hours after 
each installation, the initial results of the SFV measurements to NMFS 
in an interim report after each monopile for the first three piles and 
after each UXO/MEC detonation.
    In addition to the aforementioned monitoring requirements, Sunrise 
Wind proposes to conduct a long-term ecological monitoring project 
using bottom-mounted passive acoustic monitoring equipment during the 
effective period of the proposed rule to better understand the long 
term distribution of marine mammals in the project area with a focus on 
detecting North Atlantic right whales. This long-term study will 
contribute to the understanding of the potential impacts of the project 
and inform any potential adaptive management strategies.

Reporting

    Prior to any construction activities occurring, Sunrise Wind would 
provide a report to NMFS (at [email protected] and 
[email protected]) documenting that all required 
training for Sunrise Wind personnel (i.e., vessel crews, vessel 
captains, PSOs, and PAM operators) has been completed.
    NMFS would require standardized and frequent reporting from Sunrise 
Wind during the life of the proposed regulations and LOA. All data 
collected relating to the Sunrise Wind project would be recorded using 
industry-standard software (e.g., Mysticetus or a similar software) 
installed on field laptops and/or tablets. Sunrise Wind would be 
required to submit weekly, monthly and annual reports as described 
below. During activities requiring PSOs, the following information 
would be collected and reported related to the activity being 
conducted:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
     Water conditions (e.g., sea state, tide state, water 
depth);
     All marine mammal sightings, regardless of distance from 
the construction activity;
     Species (or lowest possible taxonomic level possible)
     Pace of the animal(s);
     Estimated number of animals (minimum/maximum/high/low/
best);
     Estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.);
     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);
     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;
     Animal's closest distance and bearing from the pile being 
driven, UXO/MEC, or specified HRG equipment and estimated time spent 
within the Level A harassment and/or Level B harassment zones;
     Construction activity at time of sighting (e.g., vibratory 
installation/removal, impact pile driving, UXO/MEC detonation, HRG 
survey), use of any noise abatement 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, post-UXO/MEC 
detonation, etc.);
     Description of any mitigation-related action implemented, 
or mitigation-related actions called for but not implemented, in 
response to the sighting (e.g., delay, shutdown, etc.) and time and 
location of the action; and
     Other human activity in the area.
    For all real-time acoustic detections of marine mammals, the 
following must be recorded and included in weekly, monthly, annual, and 
final reports:
    1. Location of hydrophone (latitude & longitude; in Decimal 
Degrees) and site name;
    2. Bottom depth and depth of recording unit (in meters);
    3. Recorder (model & manufacturer) and platform type (i.e., bottom-
mounted, electric glider, etc.), and instrument ID of the hydrophone 
and recording platform (if applicable);
    4. Time zone for sound files and recorded date/times in data and 
metadata (in relation to UTC. i.e., EST time zone is UTC-5);
    5. Duration of recordings (start/end dates and times; in ISO 8601 
format, yyyy-mm-ddTHH:MM:SS.sssZ);
    6. Deployment/retrieval dates and times (in ISO 8601 format);
    7. Recording schedule (must be continuous);
    8. Hydrophone and recorder sensitivity (in dB re. 1 mPa);
    9. Calibration curve for each recorder;
    10. Bandwidth/sampling rate (in Hz);
    11. Sample bit-rate of recordings; and
    12. Detection range of equipment for relevant frequency bands (in 
meters).
    For each detection the following information must be noted:
    13. Species identification (if possible);
    14. Call type and number of calls (if known);
    15. Temporal aspects of vocalization (date, time, duration, etc., 
date times in ISO 8601 format);
    16. Confidence of detection (detected, or possibly detected);
    17. Comparison with any concurrent visual sightings;
    18. Location and/or directionality of call (if determined) relative 
to acoustic rLocation of recorder and construction activities at time 
of call;
    19. Name and version of detection or sound analysis software used, 
with protocol reference;
    20. Minimum and maximum frequencies viewed/monitored/used in 
detection (in Hz); and
    21. Name of PAM operator(s) on duty.
    If a North Atlantic right whale is detected via Sunrise Wind's PAM, 
the date, time, and location (i.e., latitude and longitude of recorder) 
of the detection as well as the recording platform that had the 
detection must be reported to [email protected] as soon as 
feasible, no longer than 24 hours after the detection. Full detection 
data and metadata must be submitted monthly on the 15th of every month 
for the previous month via the webform on the NMFS North Atlantic right 
whale Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates).
    If a North Atlantic right whale is observed at any time by PSOs or

[[Page 9077]]

personnel on or in the vicinity of any impact or vibratory pile-driving 
vessel, dedicated PSO vessel, construction survey vessel, during vessel 
transit, or during an aerial survey, Sunrise Wind must immediately 
report sighting information to the NMFS North Atlantic Right Whale 
Sighting Advisory System (866) 755-6622, to the U.S. Coast Guard via 
channel 16, and through the WhaleAlert app (http://www.whalealert/org/) 
as soon as feasible but no longer than 24 hours after the sighting. 
Information reported must include, at a minimum: time of sighting, 
location, and number of North Atlantic right whales observed.
    SFV Interim Report--Sunrise Wind would be required to provide, as 
soon as they are available but no later than 48 hours after each 
installation, the initial results of SFV measurements to NMFS in an 
interim report after each monopile for the first three piles and any 
subsequent piles monitored. An SFV interim report must also be 
submitted within 48 hours after each UXO/MEC detonation.
    Weekly Report--Sunrise Wind would be required to compile and submit 
weekly PSO, PAM, and SFV reports to NMFS 
([email protected]) that document the daily start and 
stop of all pile driving, pneumatic hammering, HRG survey, or UXO/MEC 
detonation 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) used and its 
performance. Weekly reports would be due on Wednesday for the previous 
week (Sunday-Saturday). The weekly report would also 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--Sunrise Wind would be required to compile and 
submit monthly reports to NMFS (at [email protected] and 
[email protected]) that include a summary of all 
information in the weekly reports, including project activities carried 
out in the previous month, vessel transits (number, type of vessel, and 
route), number of piles installed, number of UXO/MEC detonations, all 
detections of marine mammals, and any mitigative actions taken. Monthly 
reports would be due on the 15th of the month for the previous month. 
The monthly report would also identify which turbines become 
operational and when (a map must be provided). Once foundation pile 
installation is complete, monthly reports would no longer be required.
    Annual Report--Sunrise Wind would be required to submit an annual 
PSO, PAM, and SFV summary report to NMFS (at [email protected] and 
[email protected]) no later than 90 days following the 
end of a given calendar year describing, in detail, all of the 
information required in the monitoring section above. A final annual 
report would be prepared and submitted within 30 calendar days 
following receipt of any NMFS comments on the draft report. If no 
comments were received from NMFS within 60 calendar days of NMFS' 
receipt of the draft report, the report would be considered final.
    Final Report--Sunrise Wind must submit its draft final report(s) to 
NMFS (at [email protected] and [email protected]) on 
all visual and acoustic monitoring conducted under the LOA within 90 
calendar days of the completion of activities occurring under the LOA. 
A final report must be prepared and submitted within 30 calendar days 
following receipt of any NMFS comments on the draft report. If no 
comments are received from NMFS within 30 calendar days of NMFS' 
receipt of the draft report, the report shall be considered final.
Situational Reporting
    Specific situations encountered during the development of the 
Sunrise Wind project would require reporting. These situations and the 
relevant procedures are described in paragraphs (d)(10)(i) through (v) 
of this section:
     If a large whale is detected during vessel transit, the 
following information must be recorded and reported:
    a. Time, date, and location;
    b. The vessel's activity, heading, and speed;
    c. Sea state, water depth, and visibility;
    d. Marine mammal identification to the best of the observer's 
ability (e.g., North Atlantic right whale, whale, dolphin, seal);
    e. Initial distance and bearing to marine mammal from vessel and 
closest point of approach; and,
    f. Any avoidance measures taken in response to the marine mammal 
sighting.
     If a sighting of a stranded, entangled, injured, or dead 
marine mammal occurs, the sighting would be reported to NMFS OPR, the 
NMFS Greater Atlantic Regional Fisheries Office (GARFO) Marine Mammal 
and Sea Turtle Stranding & Entanglement Hotline (866-755-6622), and the 
U.S. Coast Guard within 24 hours. If the injury or death was caused by 
a project activity, Sunrise Wind must immediately cease all activities 
until NMFS OPR is able to review the circumstances of the incident and 
determine what, if any, additional measures are appropriate to ensure 
compliance with the terms of the LOA. NMFS may impose additional 
measures to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. Sunrise Wind may not resume their activities 
until notified by NMFS. The report must include the following 
information:
    a. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    d. Observed behaviors of the animal(s), if alive;
    e. If available, photographs or video footage of the animal(s); and
    f. General circumstances under which the animal was discovered.
     In the event of a vessel strike of a marine mammal by any 
vessel associated with the Sunrise Wind project, Sunrise Wind shall 
immediately report the strike incident to the NMFS OPR and the GARFO 
within and no later than 24 hours. Sunrise Wind must immediately cease 
all activities until NMFS OPR is able to review the circumstances of 
the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the LOA. NMFS may 
impose additional measures to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Sunrise Wind may not resume 
their activities until notified by NMFS. The report must include the 
following information:
    a. Time, date, and location (latitude/longitude) of the incident;
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Vessel's speed during and leading up to the incident;
    d. Vessel's course/heading and what operations were being conducted 
(if applicable);
    e. Status of all sound sources in use;
    f. 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;

[[Page 9078]]

    g. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    h. Estimated size and length of animal that was struck;
    i. Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    j. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    k. 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
    l. To the extent practicable, photographs or video footage of the 
animal(s).
Sound Monitoring Reporting
    As described previously, Sunrise Wind would be required to provide 
the initial results of SFV (including measurements) to NMFS in interim 
reports after each monopile installation for the first three piles (and 
any subsequent piles) as soon as they are available, but no later than 
48 hours after each installation. Sunrise Wind would also have to 
provide interim reports after every UXO/MEC detonation as soon as they 
are available but no later than 48 hours after each detonation. In 
addition to in situ measured ranges to the Level A harassment and Level 
B harassment isopleths, the acoustic monitoring report must include: 
hammer energies (pile driving), UXO/MEC weight (including donor charge 
weight), SPLpeak, SPLrms that contains 90 percent 
of the acoustic energy, single strike sound exposure level, integration 
time for SPLrms, and 24-hour cumulative SEL extrapolated 
from measurements. The sound levels reported must be in median and 
linear average (i.e., average in linear space), and in dB. All these 
levels must be reported in the form of median, mean, max, and minimum. 
The SEL and SPL power spectral density and one-third octave band levels 
(usually calculated as decidecade band levels) at the receiver 
locations should be reported. The acoustic monitoring report must also 
include: a description of the SFV PAM 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, a description of the hydrophones 
used, hydrophone and water depth, distance to the pile driven, sediment 
type at the recording location, and local environmental conditions 
(e.g., wind speed). In addition, pre- and post-activity ambient sound 
levels (broadband and/or within frequencies of concern) should be 
reported. Finally, the report must include a description of the noise 
abatement system and operational parameters (e.g., bubble flow rate, 
distance deployed from the pile or UXO/MEC location, etc.), and any 
action taken to adjust the noise abatement system. Final results of SFV 
must be submitted as soon as possible, but no later than within 90 days 
following completion of impact pile driving of monopiles and UXOs/MECs 
detonations.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Sunrise Wind's construction activities would contain an adaptive 
management component. The monitoring and reporting requirements in this 
proposed rule are designed to provide NMFS with information that helps 
us better understand the impacts of the specified activities on marine 
mammals and informs our consideration of whether any changes to 
mitigation or monitoring are appropriate. The use of adaptive 
management allows NMFS to consider new information from different 
sources to determine (with input from Sunrise Wind regarding 
practicability) on an annual or biennial basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOA. During the course of the rule, Sunrise Wind (and other 
LOA-holders conducting offshore wind development activities) would be 
required to participate in one or more adaptive management meetings 
convened by NMFS and/or BOEM, in which the above information would be 
summarized and discussed in the context of potential changes to the 
mitigation or monitoring measures.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' by mortality, serious injury, and Level A harassment or 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 identified the subset of 
potential effects that would be expected to qualify as takes under the 
MMPA and then identified the maximum number of takes by Level A 
harassment and Level B harassment that we estimate are reasonably 
expected to occur based on the methods described. The impact that any 
given take would have is dependent on many case-specific factors that 
need to be considered in the negligible impact analysis (e.g., the 
context of behavioral exposures such as duration or intensity of a 
disturbance, the health of impacted animals, the status of a species 
that incurs fitness-level impacts to individuals, etc.). In this rule, 
we evaluate the likely impacts of the enumerated harassment takes that 
are proposed for authorization in the context of the specific 
circumstances surrounding these predicted takes. We also collectively 
evaluate this information as well as other more taxa-

[[Page 9079]]

specific information and mitigation measure effectiveness in group-
specific discussions that support our negligible impact conclusions for 
each stock. As also described above, no serious injury or mortality is 
expected or proposed for authorization for any species or stock.
    The Description of the Specified Activities section describes the 
specified activities proposed by Sunrise Wind that may result in take 
of marine mammals and an estimated schedule for conducting those 
activities. Sunrise Wind has provided a realistic construction schedule 
(e.g., Sunrise Wind's schedule reflects the maximum number of piles 
they anticipate to be able to drive each month in which pile driving is 
authorized to occur), although, we recognize schedules may shift for a 
variety of reasons (e.g., weather or supply delays). However, the total 
amount of take would not exceed the 5 year totals and maximum annual 
total in any given year indicated in Tables 38 and 39, respectively.
    We base our analysis and negligible impact determination (NID) on 
the maximum number of takes that would be reasonably expected to occur 
and are proposed to be authorized in the 5-year LOA, if issued, and 
extensive qualitative consideration of other contextual factors that 
influence the degree of impact of the takes on the affected individuals 
and the number and context of the individuals affected. As stated 
before, the number of takes, both 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 4, given that 
some of the anticipated effects of Sunrise Wind's construction 
activities on marine mammals are expected to be relatively similar in 
nature. Then, we subdivide into more detailed discussions for 
mysticetes, odontocetes, and pinnipeds, which have broad life history 
traits that support an overarching discussion of some factors 
considered within the analysis for those groups (e.g., habitat-use 
patterns, high-level differences in feeding strategies).
    Last, we provide a negligible impact determination for each species 
or stock, providing species or stock-specific information or analysis, 
where appropriate, for example, for North Atlantic right whales given 
their population status. Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of Sunrise Wind's proposed activities and then providing 
species- or stock-specific information allows us to avoid duplication 
while ensuring that we have analyzed the effects of the specified 
activities on each affected species or stock. It is important to note 
that in the group or species sections, we base our negligible impact 
analysis on the maximum annual take that is predicted under the 5-year 
rule; however, the majority of the impacts are associated with WTG and 
OCS-DC foundation installation, which would occur largely within a 1-
year period. The estimated take in the other years is expected to be 
notably less, which is reflected in the total take that would be 
allowable under the rule.
    As described previously, no serious injury or mortality is 
anticipated or proposed for authorization in this rule. The amount of 
harassment Sunrise Wind has requested and NMFS is proposing to 
authorize is based on exposure models that consider the outputs of 
acoustic source and propagation models. Several conservative parameters 
and assumptions are ingrained into these models, such as assuming 
forcing functions that consider direct contact with piles (i.e., no 
cushion allowances) and application of the highest monthly sound speed 
profile to all months within a given season. The exposure model results 
do not reflect any mitigation measures or avoidance response. The 
amount of take proposed to be authorized reflects careful consideration 
of other data (e.g, PSO data, group size data) and for large whales and 
Level A harassment potential, the consideration of mitigation measures. 
For all species, the amount of take proposed to be authorized 
represents the amount of Level A harassment and Level B harassment that 
is reasonably expected to occur.
Behavioral Disturbance
    In general, NMFS anticipates that impacts on an individual that has 
been harassed are likely to be more intense when exposed to higher 
received levels and for a longer duration (though this is in no way a 
strictly linear relationship for behavioral effects across species, 
individuals, or circumstances) and less severe impacts result when 
exposed to lower received levels and for a brief duration. However, 
there is also growing evidence of the importance of contextual factors, 
such as distance from a source in predicting marine mammal behavioral 
response to sound--i.e., sounds of a similar level emanating from a 
more distant source have been shown to be less likely to evoke a 
response of equal magnitude (e.g., DeRuiter, 2012; Falcone et al., 
2017). As described in the Potential Effects to Marine Mammals and 
their Habitat section, the intensity and duration of any impact 
resulting from exposure to Sunrise Wind's activities is dependent upon 
a number of contextual factors including, but not limited to, sound 
source frequencies, whether the sound source is 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. 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., orientation or startle response, 
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 Sunrise 
Wind's activities to produce conditions of long-term and continuous 
exposure to noise leading to long-term physiological stress responses 
in marine mammals that could affect reproduction or survival.
    In the range of potential behavioral effects that might be expected 
to be part of a response that qualifies as an instance of Level B 
harassment by behavioral disturbance (which by nature of the way it is 
modeled/counted, occurs within 1 day), the less severe end might 
include exposure to comparatively lower levels of a sound, at a greater 
distance from the animal, for a few or several minutes. A less severe 
exposure of this nature could result in a behavioral response such as 
avoiding an area that an animal would otherwise have chosen to move 
through or feed in for some amount of time, or breaking off one or a 
few feeding bouts. More severe effects could occur if an animal gets 
close enough to the source to receive a comparatively higher level, is 
exposed

[[Page 9080]]

continuously to one source for a longer time, or is exposed 
intermittently to different sources throughout a day. Such effects 
might result in an animal having a more severe flight response and 
leaving a larger area for a day or more or potentially losing feeding 
opportunities for a day. However, such severe behavioral effects are 
expected to occur infrequently.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral 
reactions to noise exposure, when taking place in a biologically 
important context, such as disruption of critical life functions, 
displacement, or avoidance of important habitat, are more likely to be 
significant if they last more than 1 day or recur on subsequent days 
(Southall et al., 2007) due to diel and lunar patterns in diving and 
foraging behaviors observed in many cetaceans (Baird et al., 2008, 
Barlow et al., 2020, Henderson et al., 2016, Schorr et al., 2014). It 
is important to note the water depth in the Sunrise Wind project area 
is shallow (5 to 50 m) and deep diving species, such as sperm whales, 
are not expected to be engaging in deep foraging dives when exposed to 
noise above NMFS harassment thresholds during the specified activities. 
Therefore, we do not anticipate impacts to deep foraging behavior to be 
impacted by the specified activities.
    It is also important to identify that the estimated number of takes 
does not necessarily equate to the number of individual animals Sunrise 
Wind expects to harass (which is lower) but rather, to the instances of 
take (i.e., exposures above the Level B harassment thresholds) that are 
anticipated to occur. These instances may represent either brief 
exposures (e.g., seconds for UXO/MEC detonation or seconds to minutes 
for HRG surveys) or in some cases, longer durations of exposure within 
a day (e.g., pile driving). Some individuals of a species may 
experience recurring instances of take over multiple days throughout 
the year while some members of a species or stock may experience one 
exposure as they move through an area, which means that the number of 
individuals taken is smaller than the total estimated takes. In short, 
for species that are more likely to be migrating through the area and/
or for which only a comparatively smaller number of takes are predicted 
(e.g., some of the mysticetes), it is more likely that each take 
represents a different individual whereas for non-migrating species 
with larger amounts of predicted take, we expect that the total 
anticipated takes represent exposures of a smaller number of 
individuals of which some would be exposed multiple times.
    For the Sunrise Wind project, impact pile driving is most likely to 
result in a higher magnitude and severity of behavioral disturbance 
than other activities (i.e., vibratory pile driving, UXO/MEC 
detonation, and HRG surveys). Impact pile driving has higher source 
levels than vibratory pile driving and HRG sources. HRG survey 
equipment also produces much higher frequencies than pile driving, 
resulting in minimal sound propagation. While UXO/MEC detonations may 
have higher source levels, impact pile driving is planned for longer 
durations (i.e., a maximum of three UXO/MEC detonations are planned, 
which would result in only instantaneous exposures). While impact pile 
driving is anticipated to be most impactful for these reasons, impacts 
are minimized through implementation of mitigation measures, including 
soft-start, use of a sound attenuation system, and the implementation 
of clearance zones that would facilitate a delay of pile driving if 
marine mammals were observed approaching or within areas that could be 
ensonified above sound levels that could result in Level B harassment. 
Given sufficient notice through the use of soft-start, marine mammals 
are expected to move away from a sound source prior to becoming exposed 
to very loud noise levels. The requirement that pile driving can only 
commence when the full extent of all clearance zones are fully visible 
to visual PSOs would ensure a higher marine mammal detection, enabling 
a high rate of success in implementation of clearance zones. 
Furthermore, Sunrise Wind would be required to utilize PAM prior to and 
during all clearance periods, during impact pile driving, and after 
pile driving has ended during the post-piling period. PAM has been 
shown to be particularly effective when used in conjunction with visual 
observations, increasing the overall capability to detect marine 
mammals (Van Parijs et al., 2021). These measures also apply to UXO/MEC 
detonation(s), which also have the potential to elicit more severe 
behavioral reactions in the unlikely event that an animal is relatively 
close to the explosion in the instant that it occurs; hence, severity 
of behavioral responses are expected to be lower than would be the case 
without mitigation.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if 
some smaller subset of the takes are in the form of a longer (several 
hours or a day) and more severe response, if they are not expected to 
be repeated over sequential days, impacts to individual fitness are not 
anticipated. 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; NAS 2017; New et al., 2014; Southall et al., 
2007; Villegas-Amtmann et al., 2015).

Temporary Threshold Shift (TTS)

    TTS is one form of Level B harassment that marine mammals may incur 
through exposure to Sunrise Wind's activities and, as described 
earlier, the proposed takes by Level B harassment may represent takes 
in the form of behavioral disturbance, TTS, or both. As discussed in 
the Potential Effects to Marine Mammals and their Habitat section, in 
general, TTS can last from a few minutes to days, be of varying degree, 
and occur across different frequency bandwidths, all of which determine 
the severity of the impacts on the affected individual, which can range 
from minor to more severe. Impact and vibratory pile driving generate 
sounds in the lower frequency ranges (with most of the energy below 1-2 
kHz, but with a small amount energy ranging up to 20 kHz); therefore, 
in general and all else being equal, we 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 the frequencies produced by pile driving 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 Sunrise Wind's pile driving and UXO/MEC 
detonation activities would not typically span the entire frequency 
range of one vocalization type, much less span all types of 
vocalizations or other critical auditory cues for any given species. 
However, the mitigation measures proposed by Sunrise Wind and proposed 
by NMFS, 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

[[Page 9081]]

previously (refer back to Table 8). 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 
proposed mitigation and the nominal speed of the receiving animal 
relative to the stationary sources such as impact pile driving. The 
recovery time of TTS is also of importance when considering the 
potential impacts from TTS. In TTS laboratory studies (as discussed in 
the Potential Effects to Marine Mammals and their Habitat section), 
some using exposures of almost an hour in duration or up to 217 SEL, 
almost all individuals recovered within 1 day (or less, often in 
minutes) and we note that while the pile driving activities last for 
hours a day, it is unlikely that most marine mammals would stay in the 
close vicinity of the source long enough to incur more severe TTS. UXO/
MEC detonation also has the potential to result in TTS; however, given 
the duration of exposure is extremely short (milliseconds), the degree 
of TTS (i.e., the amount of dB shift) is expected to be small and TTS 
duration is expected to be short (minutes to hours). Overall, given the 
small number of times that any individual might incur TTS, the low 
degree of TTS and the short anticipated duration, and the unlikely 
scenario that any TTS overlapped the entirety of a critical hearing 
range, it is unlikely that TTS of the nature expected to result from 
Sunrise Wind's activities would result in behavioral changes or other 
impacts that would impact any individual's (of any hearing sensitivity) 
reproduction or survival.

Permanent Threshold Shift (PTS)

    Sunrise Wind has requested and NMFS proposed to authorize a very 
small amount of take by PTS to some marine mammal individuals. The 
numbers of proposed annual takes by Level A harassment are relatively 
low for all marine mammal stocks and species: humpback whales (7 
takes), harbor porpoises (49 takes), gray seals (7 takes), and harbor 
seals (16 takes). The only activities we anticipate PTS may result from 
are exposure to impact pile driving and UXO/MEC detonations, which 
produce sounds that are both impulsive and primarily concentrated in 
the lower frequency ranges (below 1 kHz) (David, 2006; Krumpel et al., 
2021).
    There are no PTS data on cetaceans and only one instance of PTS 
being induced in an 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 it is unlikely that animals would 
stay in the close vicinity of a source for a duration long enough to 
produce more than a small degree of PTS.
    PTS would consist of minor degradation of hearing capabilities 
occurring predominantly at frequencies one-half to one octave above the 
frequency of the energy produced by pile driving or instantaneous UXO/
MEC detonation (i.e., the low-frequency region below 2 kHz) (Cody and 
Johnstone, 1981; McFadden, 1986; Finneran, 2015), not severe hearing 
impairment. If hearing impairment occurs from either impact pile 
driving or UXO/MEC detonation, it is most likely that the affected 
animal would lose a few decibels in its hearing sensitivity, which in 
most cases is not likely to meaningfully affect its ability to forage 
and communicate with conspecifics. However, 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 prior to it resulting in severe PTS. Sunrise 
estimates up to three UXOs/MECs may be detonated and the exposure 
analysis assumes the worst-case scenario that all of the UXOs/MECs 
found would consist of the largest charge weight of UXO/MEC (E12; 454 
kg). However, it is highly unlikely that all charges would be this 
maximum size; thus, the amount of Level A harassment that may occur 
incidental to the detonation of the three UXOs/MECs would likely be 
less than what is estimated here. Nonetheless, this negligible impact 
analysis considers the effects of the takes that are conservatively 
proposed for authorization.

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. Also, 
though, masking can result from the sum of exposure to multiple 
signals, none of which might individually cause TTS. Fundamentally, 
masking is referred to as a chronic effect because one of the key 
potential harmful components of masking is its duration--the fact that 
an animal would have reduced ability to hear or interpret critical cues 
becomes much more likely to cause a problem the longer it is occurring. 
Also 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. Masking is fundamentally more of a concern at lower 
frequencies (which are pile driving dominant frequencies) because low 
frequency signals propagate significantly further than higher 
frequencies and because they are more likely to overlap both the 
narrower low frequency calls of mysticetes, as well as many non-
communication cues related to fish and invertebrate prey, and geologic 
sounds that inform navigation. However, the area in which masking would 
occur for all marine mammal species and stocks (e.g., predominantly in 
the vicinity of the foundation pile being driven) is small relative to 
the extent of habitat used by each species and stock. In summary, the 
nature of Sunrise Wind's activities, paired with habitat use patterns 
by marine mammals, does not support the likelihood that the level of 
masking that could occur would have the potential to affect 
reproductive success or survival.

Impacts on Habitat and Prey

    Construction activities or UXO/MEC detonation may result in fish 
and invertebrate mortality or injury very close to the source, and all 
activities (including HRG surveys) may cause some fish to leave the 
area of disturbance. It is anticipated that any mortality or injury 
would be limited to a very small subset of available prey and the 
implementation of mitigation measures, such as the use of a noise 
attenuation system during impact pile driving and UXO/MEC detonation, 
would further limit the degree of impact (again noting UXO/MEC 
detonation would be limited to 3 events over 5 years). Behavioral 
changes in prey in

[[Page 9082]]

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 and operation are not anticipated to impact marine 
mammal habitat as these would be buried, and any electromagnetic fields 
emanating from the cables are not anticipated to result in consequences 
that would impact marine mammals prey to the extent they would be 
unavailable for consumption.
    The presence and operation 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 and operation 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 
dipoles of surface elevation changes stretching hundreds of kilometers 
(Christiansen et al., 2022). In 2022, NMFS hosted a workshop to better 
understand the current scientific knowledge and data gaps around the 
potential long-term impacts of offshore wind farm operations in the 
Atlantic Ocean. The report from that workshop is pending, and NMFS will 
consider its findings in development of the final rule for this action.
    As discussed in the Potential Effects to Marine Mammals and Their 
Habitat section, the SRWF would consist of no more than 94 WTGs 
(scheduled to be operational by the end of Year 1 of the effective 
period of the rule) in coastal waters off New York, an area dominated 
by physical oceanographic patterns of strong seasonal stratification 
(summer) and turbulence-driven mixing (winter). While there are likely 
to be local oceanographic impacts from the presence and operation of 
the SRWF, meaningful oceanographic impacts relative to stratification 
and mixing that would significantly affect marine mammal habitat and 
prey over large areas in key foraging habitats are not anticipated from 
the Sunrise Wind project. Although this area supports aggregations of 
zooplankton (baleen whale prey) that could be impacted if long-term 
oceanographic changes occurred, prey densities are typically 
significantly less in the Sunrise Wind project area than in known 
baleen whale foraging habitats to the east and north (e.g., south of 
Nantucket and Martha's Vineyard, Great South Channel). For these 
reasons, if oceanographic features are affected by wind farm operation 
during the course of the proposed rule (approximately end of Year 1 
through Year 5), the impact on marine mammal habitat and their prey is 
likely to be comparatively minor.

Mitigation To Reduce Impacts on All Species

    This proposed rulemaking includes a variety of mitigation measures 
designed to minimize impacts on all marine mammals, with a focus on 
North Atlantic right whales (the latter is described in more detail 
below). For impact pile driving of foundation piles, eight overarching 
mitigation measures are proposed, which are intended to reduce both the 
number and intensity of marine mammal takes: (1) seasonal/time of day 
work restrictions; (2) use of multiple PSOs to visually observe for 
marine mammals (with any detection within designated zones triggering 
delay or shutdown); (3) use of PAM to acoustically detect marine 
mammals, with a focus on detecting baleen whales (with any detection 
within designated zones triggering delay or shutdown); (4) 
implementation of clearance zones; (5) implementation of shutdown 
zones; (6) use of soft-start; (7) use of noise abatement technology; 
and, (8) maintaining situational awareness of marine mammal presence 
through the requirement that any marine mammal sighting(s) by Sunrise 
Wind project personnel must be reported to PSOs.
    When monopile foundation installation does occur, Sunrise Wind is 
committed to reducing the noise levels generated by impact pile driving 
to the lowest levels practicable and ensuring that they do not exceed a 
noise footprint above that which was modeled, assuming a 10 dB 
attenuation. Use of a soft-start would allow animals to move away from 
(i.e., avoid) the sound source prior to the elevation of the hammer 
energy to the level maximally needed to install the pile (Sunrise Wind 
would not use a hammer energy greater than necessary to install piles). 
Clearance zone and shutdown zone implementation, required when marine 
mammals are within given distances associated with certain impact 
thresholds, would reduce the magnitude and severity of marine mammal 
take.
    Sunrise proposed and NMFS would require use a noise attenuation 
device (likely a big bubble curtain and another technology, such as a 
hydro-sound damper) during all foundation pile driving to ensure sound 
generated from the project does not exceed that modeled (assuming 10 dB 
reduction) distances to harassment isopleths and to minimize noise 
levels to the lowest level practicable. Double big bubble curtains are 
successfully and widely applied across European wind development 
efforts, and are known to reduce noise levels more than a single big 
bubble curtain alone (e.g., see Bellman et al., 2020).

Mysticetes

    Six mysticete species (comprising six stocks) of cetaceans (North 
Atlantic right whale, humpback whale, fin whale, blue whale, sei whale, 
and minke whale) are proposed to be taken by harassment. These species, 
to varying extents, utilize coastal New England waters, including the 
project area, for the purposes of migration and foraging.
    Behavioral data on mysticete reactions to pile driving noise is 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying, which is less likely for 
mysticetes in this area), disruption of foraging activities (if they 
are occurring in the area), local masking around the source, associated 
stress responses, and impacts to prey as well as TTS or PTS in some 
cases.
    Mysticetes encountered in the Sunrise Wind project area are 
expected to be migrating through and/or foraging within the project 
area; the extent to which an animal engages in these behaviors in the 
area is species-specific and varies seasonally. Given that extensive 
feeding BIAs for the North Atlantic right whale, humpback whale, fin 
whale, sei whale, and minke whale exist to the east and north of the 
project

[[Page 9083]]

area (LaBrecque et al., 2015; Van Parijs et al, 2015), many mysticetes 
are expected to predominantly be migrating through the project area 
towards or from these feeding habitats. However, the extent to which 
particular species are utilizing the project area and nearby habitats 
(i.e,, south of Martha's Vineyard and Nantucket) for foraging or other 
activities is changing, particularly right whales (e.g., O'Brien et 
al., 2021; Quintana-Rizzo et al., 2021), thus our understanding of the 
temporal and spatial occurrence of right whales and other mysticete 
species is continuing to be informed by ongoing monitoring efforts. 
While we have acknowledged above that mortality, hearing impairment, or 
displacement of mysticete prey species may result locally from impact 
pile driving or UXO/MEC detonation, given the very short duration of 
UXO/MEC detonation and limited amount over 5 years, 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 would be 
expected to be minor. Whales temporarily displaced from the proposed 
project area would be 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. In 
addition, any displacement of whales or interruption of foraging bouts 
would be expected to be 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. Where relatively low amounts of species-
specific proposed Level B harassment are predicted (compared to the 
abundance of each mysticete species or stock, such as is indicated in 
Table 4) and movement patterns suggest that individuals would not 
necessarily linger in a particular area for multiple days, each 
predicted take likely represents an exposure of a different individual. 
The behavioral impacts would, therefore, be expected to occur within a 
single day within a year--an amount that would not be expected to 
impact reproduction or survival. Alternatively, species with longer 
residence time in the project area may be subject to repeated 
exposures. In general, for this project, the duration of exposures 
would not be continuous throughout any given day and pile driving would 
not occur on all consecutive days within a given year due to weather 
delays or any number of logistical constraints Sunrise Wind has 
identified. Species-specific analysis regarding potential for repeated 
exposures and impacts is provided below. Overall, we do not expect 
impacts to whales within project area habitat, including fin whales 
foraging in the fin whale feeding BIA, to affect the fitness of any 
large whales.
    NMFS is proposing to authorize Level A harassment (in the form of 
PTS) of fin, minke, humpback, and sei whales incidental to installation 
of SFWF foundations. As described previously, PTS for mysticetes from 
impact pile driving may overlap frequencies used for communication, 
navigation, or detecting prey. However, given the nature and duration 
of the activity, the mitigation measures, and likely avoidance 
behavior, any PTS is expected to be of a small degree, would be limited 
to frequencies where pile driving noise is concentrated (i.e., only a 
small subset of their expected hearing range) and would not be expected 
to impact reproductive success or survival.

North Atlantic Right Whales

    North Atlantic right whales are listed as endangered under the ESA 
and as described in the Effects to Marine Mammals and Their Habitat 
section, 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). Given this, the 
status of the North Atlantic right whale population is of heightened 
concern and therefore, merits additional analysis and consideration. 
NMFS proposes to authorize a maximum of 35 takes of North Atlantic 
right whales by Level B harassment only in any given year (likely Year 
1) with no more than 47 takes incidental to all construction activities 
over the 5-year period of effectiveness of this proposed rule.
    As described above, the project area represents part of an 
important migratory and potential feeding area for right whales. 
Quintana-Rizzo et al. (2021) noted different degrees of residency 
(i.e., the minimum number of days an individual remained in southern 
New England) for right whales with individual sighting frequency 
ranging from 1 to 10 days. The study results indicate that southern New 
England may, in part, be a stopover site for migrating right whales 
moving to or from southeastern calving grounds. The right whales 
observed during the study period were primarily concentrated in the 
northeastern and southeastern sections of the MA WEA during the summer 
(June-August) and winter (December-February) rather than in OCS-A 0487, 
which is to the west in the RI/MA WEA (see Figure 5 in Quintano-Rizzo 
et al., 2021). Right whale distribution did shift to the west into the 
RI/MA WEA in the spring (March-May), although sightings within the 
Sunrise Wind project area were few compared to other portions of the 
WEA during this time. Overall, the Sunrise Wind project area contains 
habitat less frequently utilized by North Atlantic right whales than 
the more easterly Southern New England region.
    In general, North Atlantic right whales in southern New England are 
expected to be engaging in migratory or foraging behavior (Quintano-
Rizzo et al., 2021). Model outputs suggest that 23 percent of the 
species' population is present in this region from December through 
May, and the mean residence time has tripled to an average of 13 days 
during these months. Given the species' migratory behavior in the 
project area, we anticipate individual whales would be typically 
migrating through the area during most months when foundation 
installation and UXO/MEC detonation would occur (given the seasonal 
restrictions on foundation installation from January through April and 
UXO/MEC detonation from December through April) rather than lingering 
for extended periods of time. Other work that involves either much 
smaller harassment zones (e.g., HRG surveys) or is limited in amount 
(cable landfall construction) may occur during periods when North 
Atlantic right whales are using the habitat for both migration and 
foraging. Therefore, it is likely that many of the exposures would 
occur to individual whales; however, some may be repeat takes of the 
same animal across multiple days for some short period of time given 
residency data (e.g., 13 days during December through May). It is 
important to note the activities occurring from December through May 
that may impact North Atlantic right whale would be primarily HRG 
surveys and cable landfall construction, neither of which would result 
in very high received levels. Across all years, while it is possible an 
animal could have been exposed during a previous year, the low amount 
of take proposed to be authorized during the 5-year period of the 
proposed rule makes this scenario possible but unlikely. However, if an 
individual were to be exposed during a

[[Page 9084]]

subsequent year, the impact of that exposure is likely independent of 
the previous exposure given the duration between exposures.
    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 proposed to be authorized. Any disturbance 
to North Atlantic right whales due to Sunrise Wind's activities is 
expected to result in temporary avoidance of the immediate area of 
construction. As no injury, serious injury, or mortality is expected or 
authorized, and Level B harassment of North Atlantic right whales will 
be reduced to the level of least practicable adverse impact through use 
of mitigation measures, the authorized number of takes of North 
Atlantic right whales would not exacerbate or compound the effects of 
the ongoing UME in any way.
    As described in the general Mysticetes section above, impact pile 
driving of foundation piles has the potential to result in the highest 
amount of annual take (44 Level B harassment takes) and is of greatest 
concern given loud source levels. This activity would likely be limited 
to 1 year, during times when North Atlantic right whales are not 
present in high numbers and are likely to be primarily migrating to 
more northern foraging grounds with the potential for some foraging 
occurring in or near the project area. The potential types, severity, 
and magnitude of impacts are also anticipated to mirror that described 
in the general Mysticetes section above, including avoidance (the most 
likely outcome), changes in foraging or vocalization behavior, masking, 
a small amount of TTS, and temporary physiological impacts (e.g., 
change in respiration, change in heart rate). Importantly, the effects 
of the activities proposed by Sunrise Wind are expected to be 
sufficiently low-level and localized to specific areas as to not 
meaningfully impact important behaviors such as migratory or foraging 
behavior of North Atlantic right whales. As described above, no more 
than 35 takes would occur in any given year (likely Year 1 if all 
foundations are installed in Year 1) with no more than 47 takes 
occurring across the 5 years the proposed rule would be effective. If 
this number of exposures results in temporary behavioral reactions, 
such as slight displacement (but not abandonment) of migratory habitat 
or temporary cessation of feeding, it is unlikely to result in 
energetic consequences that could affect reproduction or survival of 
any individuals. As described above, North Atlantic right whales are 
primarily foraging during December through May when the vast majority 
of take from impact pile driving would not occur (given the seasonal 
restriction from January 1-April 30). Overall, NMFS expects that any 
harassment of North Atlantic right whales incidental to the specified 
activities would not result in changes to their migration patterns or 
foraging behavior as only temporary avoidance of an area during 
construction is expected to occur. As described previously, right 
whales migrating through and/or foraging in these areas are not 
expected to remain in this habitat for extensive durations, relative to 
nearby habitats such as south of Nantucket and Martha's Vineyard or the 
Great South Channel (known core foraging habitats) (Quintana-Rizzo et 
al., 2021) and that 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, 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 or vibratory pile driving) to none (e.g., construction 
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 infrequent and 
brief given time of year restrictions, 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 and 
limited to frequencies where most construction noise is centered (below 
2 kHz). NMFS expects that right whale hearing sensitivity would return 
to pre-exposure levels shortly after migrating through the area or 
moving away from the sound source.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section, the distance of the receiver to the source influences 
the severity of response with greater distances typically eliciting 
less severe responses. Additionally, NMFS recognizes North Atlantic 
right whales migrating could be pregnant females (in the fall) and cows 
with older calves (in spring) and that these animals may slightly alter 
their migration course in response to any foundation pile driving. 
However, as described in the Potential Effects to Marine Mammals and 
Their Habitat section, 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 
right whales would be similar to that of gray whales (Tyack and Clark, 
1983), on the order of hundreds of meters up to 1 to 2 km. This 
diversion from a migratory path otherwise uninterrupted by Sunrise Wind 
activities or from lower quality foraging habitat (relative to nearby 
areas) 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 Sunrise Wind 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, Sunrise Wind has proposed 
and NMFS is proposing to require a suite of mitigation measures 
designed to reduce impacts to North Atlantic right whales to the 
maximum extent practicable. These mitigation measures (e.g., seasonal/
daily work restrictions, vessel separation distances, reduced vessel 
speed) would not only avoid the likelihood of ship strikes but also 
would minimize the severity of behavioral disruptions by minimizing 
impacts (e.g., through sound reduction using abatement systems and 
reduced temporal overlap of project activities and North Atlantic right 
whales). This would further ensure that the number of takes by Level B 
harassment that are estimated to occur are not expected to

[[Page 9085]]

affect reproductive success or survivorship via detrimental impacts to 
energy intake or cow/calf interactions during migratory transit. 
However, even in consideration of recent habitat-use and distribution 
shifts, Sunrise Wind would still be installing monopiles when the 
presence of North Atlantic right whales is expected to be lower.
    As described in the Description of Marine Mammals in the Area of 
Specified Activities section, Sunrise Wind would be constructed within 
the North Atlantic right whale migratory corridor BIA, which represent 
areas and months within which a substantial portion of a species or 
population is known to migrate. Off the south coast of Massachusetts 
and Rhode Island, this BIA extends from the coast to beyond the shelf 
break. The Sunrise Wind lease area is relatively small compared with 
the migratory BIA area (approximately 351 km\2\ versus the size of the 
full North Atlantic right whale migratory BIA, 269,448 km\2\). Because 
of this, overall North Atlantic right whale migration is not expected 
to be impacted by the proposed activities. There are no known North 
Atlantic right whale mating or calving areas within the project area. 
Impact pile driving, which is responsible for the majority of North 
Atlantic right whale impacts, would be limited to a maximum of 12 hours 
per day (three intermittent 4-hour events); therefore, if foraging 
activity is disrupted due to pile driving, any disruption would be 
brief as North Atlantic right whales would likely resume foraging after 
pile driving ceases or when animals move to another nearby location to 
forage. Prey species are mobile (e.g., calanoid copepods can initiate 
rapid and directed escape responses) and are broadly distributed 
throughout the project area (noting again that North Atlantic right 
whale prey is not particularly concentrated in the project area 
relative to nearby habitats). Therefore, any impacts to prey that may 
occur are also unlikely to impact marine mammals.
    The most significant measure to minimize impacts to individual 
North Atlantic right whales during monopile installations is the 
seasonal moratorium on impact pile driving of monopiles from January 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). Further, NMFS 
expects that exposures to North Atlantic right whales would be reduced 
due to the additional proposed mitigation measures that would ensure 
that any exposures above the Level B harassment threshold would result 
in only short-term effects to individuals exposed. Impact pile driving 
may only begin in the absence of North Atlantic right whales (based on 
visual and passive acoustic monitoring). If impact pile driving has 
commenced, NMFS anticipates North Atlantic right whales would avoid the 
area, utilizing nearby waters to carry on pre-exposure behaviors. 
However, impact pile driving must be shut down if a North Atlantic 
right whale is sighted at any distance unless a shutdown is not 
feasible due to risk of injury or loss of life. Shutdown may occur 
anywhere if right whales are seen within or beyond the Level B 
harassment zone, further minimizing the duration and intensity of 
exposure. NMFS anticipates that if North Atlantic right whales go 
undetected and they are exposed to impact pile driving noise, it is 
unlikely a North Atlantic right whale would approach the impact pile 
driving locations to the degree that they would purposely expose 
themselves to very high noise levels. These measures are designed to 
avoid PTS and also reduce the severity of Level B harassment, including 
the potential for TTS. While some TTS could occur, given the proposed 
mitigation measures (e.g., delay pile driving upon a sighting or 
acoustic detection and shutting down upon a sighting or acoustic 
detection), the potential for TTS to occur is low.
    The proposed 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, 
Sunrise Wind proposed, and NMFS is proposed to require, the combination 
of PAM and visual observers (as well as communication protocols with 
other Sunrise Wind vessels, and other heightened awareness efforts such 
as 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 pile driving or shutdown (if feasible) would occur. In 
addition, the implementation of a soft-start would provide an 
opportunity for whales to move away from the source if they are 
undetected, reducing received levels. Further, Sunrise Wind has 
committed to not installing two WTG or OCS-DC foundations 
simultaneously. North Atlantic right whales would, therefore, not be 
exposed to concurrent impact pile driving on any given day and the area 
ensonified at any given time would be limited. We note that Sunrise 
Wind has requested to install foundation piles at night which does 
raise concern over detection capabilities. Sunrise Wind is currently 
conducting detection capability studies using alternative technology 
and intends to submit the results of these studies to NMFS. In 
consultation with BOEM, NMFS will review the results and determine 
whether Sunrise Wind's proposed monitoring plan will be effective at 
detecting marine mammals in order to implement mitigation.
    Although the temporary sheet pile Level B harassment zone is large 
(9,740 km to the unweighted Level B harassment threshold; Table 27 in 
the ITA application), the sheet piles would be installed within 
Narragansett Bay over a short timeframe (56 hours total; 28 hours for 
installation and 28 hours for removal). Therefore, it is also unlikely 
that any North Atlantic right whales would be exposed to concurrent 
vibratory and impact pile installation noises. Any UXO/MEC detonations, 
if determined to be necessary, would only occur in daylight and if all 
other low-order methods or removal of the explosive equipment of the 
device are determined to not be possible. Given that specific locations 
for the three UXOs/MECs detonations, if they occur, are not presently 
known, Sunrise Wind has agreed to undertake specific mitigation 
measures to reduce impacts on any North Atlantic right whales, 
including the use of a sound attenuation device (i.e., likely a bubble 
curtain and another device) to achieve a minimum of 10 dB attenuation, 
and not detonating a UXO/MEC if a North Atlantic right whale is 
observed within the large whale clearance zone (10 km). Finally, for 
HRG surveys, the maximum distance to the Level B harassment isopleth is 
141 m. The estimated take, by Level B harassment only, associated with 
HRG surveys is to account for any North Atlantic right whale sightings 
PSOs may miss when HRG acoustic sources are active. However, because of 
the short maximum distance to the Level B harassment isopleth (141 m), 
the requirement that vessels maintain a distance of 500 m from any 
North Atlantic right whales, the fact whales are unlikely to remain in 
close proximity to an HRG survey vessel for any length of time, and 
that the acoustic source would be shutdown if a North Atlantic right 
whale is observed within

[[Page 9086]]

500 m of the source, any exposure to noise levels above the harassment 
threshold (if any) would be very brief. To further minimize exposures, 
ramp-up of boomers, sparkers, and CHIRPs 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 proposed mitigation requirements, take by Level A 
harassment is unlikely and, therefore, not proposed for authorization. 
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.
    North Atlantic right whales are listed as endangered under the ESA 
with a declining population primarily due to vessel strike and 
entanglement. Again, NMFS is proposing to authorize no more than 35 
instances of take, by Level B harassment only, within the a given year 
with no more than 47 instances of take could occur over the 5-year 
effective period of the proposed rule, with the likely scenario that 
each instance of exposure occurs to a different individual (a small 
portion of the stock), and any individual North Atlantic right whale is 
likely to be disturbed at a low-moderate level. The magnitude and 
severity of harassment are not expected to result in impacts on the 
reproduction or survival of any individuals, let alone have impacts on 
annual rates of recruitment or survival of this stock. No mortality, 
serious injury, or Level A harassment is anticipated or proposed to be 
authorized. For these reasons, we have preliminarily determined, in 
consideration of all of the effects of the Sunrise Wind's activities 
combined, that the proposed authorized take would have a negligible 
impact on the North Atlantic stock of North Atlantic right whales.
Humpback Whales
    Humpback whales potentially impacted by Sunrise Wind's activities 
do not belong to a DPS that is listed as threatened or endangered under 
the ESA. However, 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 half had evidence of 
human interaction (ship strike or entanglement). The UME does not yet 
provide cause for concern regarding population-level impacts, and take 
from ship strike and entanglement is not proposed to 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.
    Sunrise Wind has requested, and NMFS has proposed to authorize, a 
limited amount of humpback whale harassment, by Level A harassment and 
Level B harassment. No mortality or serious injury is anticipated or 
proposed for authorization. Among the activities analyzed, impact pile 
driving has the potential to result in the highest amount of annual 
take of humpback whales (3 takes by Level A harassment and 89 takes by 
Level B harassment) and is of greatest concern, given the associated 
loud source levels. Kraus et al. (2016) reported humpback whale 
sightings in the RI-MA WEA during all seasons, with peak abundance 
during the spring and early summer, but their presence within the 
region varies between years. Increased presence of sand lance 
(Ammodytes spp.) appears to correlate with the years in which most 
whales were observed, suggesting that humpback whale distribution and 
occurrence could largely be influenced by prey availability (Kenney and 
Vigness-Raposa 2010, 2016). Seasonal abundance estimates of humpback 
whales in the RI-MA WEA range from 0 to 41 (Kraus et al., 2016), with 
higher estimates observed during the spring and summer. Davis et al. 
(2020) found the greatest number of acoustic detections in southern New 
England in the winter and spring, with a noticeable decrease in 
acoustic detections during most summer and fall months. These data 
suggest that the 3 and 89 maximum annual instances of predicted take by 
Level A harassment and Level B harassment, respectively, could consist 
of individuals exposed to noise levels above the harassment thresholds 
once during migration through the project area and/or individuals 
exposed on multiple days if they are utilizing the area as foraging 
habitat. Based on the observed peaks in humpback whale seasonal 
distribution in the RI/MA WEA, it is likely that these individuals 
would primarily be exposed to HRG survey activities, landfall 
construction activities, and to a lesser extent, impact pile driving 
and UXO/MEC detonations (given the seasonal restrictions on the latter 
two activities). Any such exposures would occur either singly, or 
intermittently, but not continuously throughout a day.
    For all the reasons described in the Mysticetes section above, we 
anticipate any potential PTS or TTS would be small (limited to a few 
dB) and concentrated at half or one octave above the frequency band of 
pile driving noise (most sound is below 2 kHz) which does not include 
the full predicted hearing range of baleen whales. If TTS is incurred, 
hearing sensitivity would likely return to pre-exposure levels shortly 
after exposure ends. Any masking or physiological responses would also 
be of low magnitude and severity for reasons described above.
    Altogether, the low magnitude and severity of harassment effects is 
not expected to result in impacts on the reproduction or survival of 
any individuals, let alone have impacts on annual rates of recruitment 
or survival of this stock. No mortality or serious injury is 
anticipated or proposed to be authorized. For these reasons, we have 
preliminarily determined, in consideration of all of the effects of the 
Sunrise Wind's activities combined, that the proposed authorized take 
would have a negligible impact on the Gulf of Maine stock of humpback 
whales.
Fin Whale
    The western North Atlantic stock of fin whales is listed as 
endangered under the ESA. The 5-year total amount of take, by Level A 
harassment and Level B harassment, of fin whales (n= 4 and 97, 
respectively) that NMFS proposes to authorize is low relative to the 
stock abundance. Any Level B harassment is expected to be in the form 
of behavioral disturbance, primarily resulting in avoidance of the 
project area where pile driving 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 or TTS would be 
small (limited to a few dB) and concentrated at half or one octave 
above the frequency band of pile driving noise (most sound is below 2 
kHz) which does not include the full predicted hearing range of fin 
whales. No serious injury or mortality is anticipated or proposed for 
authorization. As described previously, the project area overlaps 
approximately 12 percent of a small fin whale feeding BIA (March-
October; 2,933 km\2\) located east of Montauk Point, New York (Figure 
2.3 in LaBrecque et al., 2015). Although the SRWF and a portion of the 
SRWEC would be constructed within the fin whale foraging BIA, the BIA 
is

[[Page 9087]]

considerably larger than the relatively small area within which impacts 
from monopile installations or UXO/MEC detonations may occur; this 
difference in scale would provide ample access to foraging 
opportunities for fin whales within the remaining area of the BIA. In 
addition, monopile installations and UXO/MEC detonations have seasonal/
daily work restrictions, such that the temporal overlap between these 
project activities and the BIA timeframe does not include the months of 
March or April. Acoustic impacts from landfall construction would be 
limited to Narragansett Bay, within which fin whales are not expected 
to occur. A second larger yearlong feeding BIA (18,015 km\2\) extends 
from the Great South Channel (east of the smaller fin whale feeding 
BIA) north to southern Maine. Any disruption of feeding behavior or 
avoidance of the western BIA by fin whales from May to October is 
expected to be temporary, with habitat utilization by fin whales 
returning to baseline once the construction activities cease. The 
larger fin whale feeding BIA would provide suitable alternate habitat 
and ample foraging opportunities consistently throughout the year, 
rather than seasonally like the smaller, western BIA.
    Because of the relatively low magnitude and severity of take 
proposed for authorization, the fact that no serious injury or 
mortality is anticipated, the temporary nature of the disturbance, and 
the availability of similar habitat and resources in the surrounding 
area, NMFS has preliminarily determined that the impacts of Sunrise 
Wind's activities on fin whales and the food sources that they utilize 
are not expected to cause significant impacts on the reproduction or 
survival of any individuals, let alone have impacts on annual rates of 
recruitment or survival of this stock.
Blue and Sei Whales
    The Western North Atlantic stock of blue whales and the Nova Scotia 
stock of sei whales are also listed under the ESA. There are no known 
areas of specific biological importance in or around the project area, 
nor are there any UMEs. For both species, the actual abundance of each 
stock is likely significantly greater than what is reflected in each 
SAR because, as noted in the SARs, the most recent population estimates 
are primarily based on surveys conducted in U.S. waters and both 
stocks' range extends well beyond the U.S. EEZ.
    The 5-year total amount of take, by Level B harassment, proposed 
for authorization for blue whales (n=7) and the 5-year total amount of 
take, by Level A harassment and Level B harassment proposed for 
authorization for sei whales (n=2 and 26, respectively) is low. NMFS is 
not proposing to authorize take by Level A harassment for blue whales. 
Similar to other mysticetes, we would anticipate the number of takes to 
represent individuals taken only once or, in rare cases, an individual 
taken a very small number of times as most whales in the project area 
would be migrating. To a small degree, sei whales may forage in the 
project area, although the currently identified foraging habitats 
(BIAs) are to the east and north of the area in which Sunrise Wind's 
activities would occur (LaBrecque et al. 2015). With respect to the 
severity of those individual takes by behavioral Level B harassment, we 
would anticipate impacts to be limited to low-level, temporary 
behavioral responses with avoidance and potential masking impacts in 
the vicinity of the turbine installation to be the most likely type of 
response. Any potential PTS or TTS would be small (limited to a few dB) 
and concentrated at half or one octave above the frequency band of pile 
driving noise (most sound is below 2 kHz) which does not include the 
full predicted hearing range of blue or sei whales. Any avoidance of 
the project area due to Sunrise Wind's activities would be expected to 
be temporary.
    Overall, the take by harassment proposed for authorization is of a 
low magnitude and severity and is not expected to result in impacts on 
the reproduction or survival of any individuals, let alone have impacts 
on annual rates of recruitment or survival of this stock. No mortality 
or serious injury is anticipated or proposed to be authorized. For 
these reasons, we have preliminarily determined, in consideration of 
all of the effects of the Sunrise Wind's activities combined, that the 
proposed authorized take would have a negligible impact on the Western 
North Atlantic blue whale stock and the Nova Scotia sei whale stock.
Minke Whales
    The Canadian East Coast stock of minke whales is not listed under 
the ESA. There are no known areas of specific biological importance in 
or around the project area. Beginning in January 2017, elevated minke 
whale strandings have occurred along the Atlantic coast from Maine 
through South Carolina, with highest numbers in Massachusetts, Maine, 
and New York. This event does not provide cause for concern regarding 
population level impacts, as the likely population abundance is greater 
than 21,000 whales. No mortality or serious injury of this stock is 
anticipated or proposed for authorization.
    The 5-year total amount of take, by Level A harassment and Level B 
harassment proposed for authorization for minke whales (n=27 and 467, 
respectively) is relatively low. We anticipate the impacts of this 
harassment to follow those described in the general Mysticete section 
above. In summary, 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. Overall, the amount 
of take proposed to be authorized is small and the low magnitude and 
severity of harassment effects is not expected to result in impacts on 
the reproduction or survival of any individuals, let alone have impacts 
on annual rates of recruitment or survival of this stock. No mortality 
or serious injury is anticipated or proposed to be authorized. Any 
potential PTS or TTS would be small (limited to a few dB) and 
concentrated at half or one octave above the frequency band of pile 
driving noise (most sound is below 2 kHz) which does not include the 
full predicted hearing range of minke whales. For these reasons, we 
have preliminarily determined, in consideration of all of the effects 
of the Sunrise Wind's activities combined, that the proposed authorized 
take would have a negligible impact on the Canadian East Coast stock of 
minke whales.

Odontocetes

    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below, which are further 
divided into the following subsections: sperm whales, dolphins and 
small whales; and harbor porpoises. These sub-sections include more 
specific information, as well as conclusions for each stock 
represented.
    The majority of takes by harassment of odontocetes incidental to 
Sunrise Wind's specified activities are by Level B harassment 
incidental to pile driving and HRG surveys. 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.

[[Page 9088]]

    Pile driving, particularly impact pile driving foundation piles, 
has the potential to disturb odontocetes to the greatest extent, 
compared to HRG surveys and UXO/MEC detonations. While we do expect 
animals to avoid the area during pile driving, their habitat range is 
extensive compared to the area ensonified during pile driving.
    As described earlier, Level B harassment may manifest as changes to 
behavior (e.g., avoidance, changes in vocalizations (from masking) or 
foraging), physiological 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 pile being driven. While 
masking could occur during pile driving, it would only occur in the 
vicinity of and during the duration of the pile driving, and would not 
generally occur in a frequency range that overlaps most odontocete 
communication or echolocation signals. The mitigation measures (e.g., 
use of sound abatement 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 
conducted by Sunrise Wind 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 proposed by Sunrise Wind. Further, 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, either 
temporary or permanent, would interfere with feeding behaviors (noting 
that take by Level A harassment (PTS) is proposed for only harbor 
porpoises). For HRG surveys, the sources operate at higher frequencies 
than pile driving and UXO/MEC detonations; however, sounds from these 
sources attenuate very quickly in the water column, as described above; 
therefore, any potential for TTS and masking is very limited. Further, 
odontocetes (e.g., common dolphins, spotted dolphins, bottlenose 
dolphins) have demonstrated an affinity to bow-ride actively surveying 
HRG surveys; therefore, the severity of any harassment, if it does 
occur, is anticipated to be minimal based on the lack of avoidance 
previously demonstrated by these species.
    The waters off the coast of New York are used by several odontocete 
species; however, none (except the sperm whale) are listed under the 
ESA and there are no known habitats of particular importance. In 
general, odontocete habitat ranges are far-reaching along the Atlantic 
coast of the UNITED STATES, and the waters off New York, including the 
project area, do not contain any particularly unique odontocete habitat 
features.
Sperm Whale
    The Western North Atlantic stock of sperm whales spans the East 
Coast out into oceanic waters well beyond the U.S. EEZ. Although listed 
as endangered, the primary threat faced by the sperm whale (i.e., 
commercial whaling) has been eliminated and, further, sperm whales in 
the western North Atlantic were little affected by modern whaling 
(Taylor et al., 2008). Current potential threats to the species 
globally include vessel strikes, entanglement in fishing gear, 
anthropogenic noise, exposure to contaminants, climate change, and 
marine debris. There is no currently reported trend for the stock and, 
although the species is listed as endangered under the ESA, there are 
no specific issues with the status of the stock that cause particular 
concern (e.g., no UMEs). There are no known areas of biological 
importance (e.g., critical habitat or BIAs) in or near the project 
area.
    No mortality, serious injury or Level A harassment is anticipated 
or proposed to be authorized for this species. Impacts would be limited 
to Level B harassment and would occur to only a very small number of 
individuals (maximum of 14 in any given year (likely year 1) and 21 
across all 5 years) incidental to pile driving, UXO/MEC detonation(s), 
and HRG surveys. Sperm whales are not common within the project area 
due to the shallow waters, and it is not expected that any noise levels 
would reach habitat in which sperm whales are common, including deep-
water foraging habitat. If sperm whales do happen to be present in the 
project area during any activities related to the Sunrise Wind project, 
they would likely be only transient visitors and not engaging in any 
significant behaviors. This very low magnitude and severity of effects 
is not expected to result in impacts on the reproduction or survival of 
individuals, much less impact annual rates of recruitment or survival. 
For these reasons, we have determined, in consideration of all of the 
effects of the Sunrise Wind's activities combined, that the take 
proposed to be authorized would have a negligible impact on sperm 
whales.
Dolphins and Small Whales (Including Delphinids, Pilot Whales, and 
Harbor Porpoises)
    There are no specific issues with the status of odontocete stocks 
that cause particular concern (e.g., no recent UMEs). No mortality or 
serious injury is expected or proposed to be authorized for these 
stocks. Only Level B harassment is anticipated or proposed for 
authorization for any dolphin or small whale. A small amount (n= 20) of 
Level A harassment (in the form of PTS) is proposed to be authorized 
for harbor porpoises.
    The maximum amount of take, by Level B harassment, proposed for 
authorization within any one year for all odontocetes cetacean stocks 
ranges from 21 to 12,193 instances, which is less than a maximum of 4.3 
percent as compared to the population size for all stocks. As described 
above for odontocetes broadly, we anticipate that a fair number of 
these instances of take in a day represent multiple exposures of a 
smaller number of individuals, meaning the actual number of individuals 
taken is lower. Although some amount of repeated exposure to some 
individuals is likely given the duration of activity proposed by 
Sunrise Wind, the intensity of any Level B harassment combined with the 
availability of alternate nearby foraging habitat suggests that the 
likely impacts would not impact the reproduction or survival of any 
individuals.
    Overall, the populations of all dolphins and small whale species 
and stocks for which we propose to authorize take are stable (no 
declining population trends), not facing existing UMEs, and the small 
amount, magnitude and severity of effects is 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, in consideration of all of the effects of the Sunrise 
Wind's activities combined, that the take proposed to be authorized

[[Page 9089]]

would have a negligible impact on all dolphin and small whale species 
and stocks considered in this analysis.
Harbor Porpoises
    The Gulf of Maine/Bay of Fundy stock of harbor porpoises is found 
predominantly in northern U.S. coastal waters (less than 150 m depth) 
and up into Canada's Bay of Fundy. 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 by UXO/MEC 
detonations are anticipated or authorized for this stock. NMFS proposes 
to authorize 49 takes by Level A harassment (PTS; incidental to UXO/MEC 
detonations) and 1,237 takes by Level B harassment (incidental to 
multiple activities).
    Regarding the severity of takes by behavioral Level B harassment, 
because harbor porpoises are particularly sensitive to noise, it is 
likely that a fair number of the responses could be of a moderate 
nature, particularly to pile driving. In response to pile driving, 
harbor porpoises are likely to avoid the area during construction, as 
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne 
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United 
Kingdom, although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. However, pile driving is 
scheduled to occur when harbor porpoise abundance is low off the coast 
of New York and, given alternative foraging areas, any avoidance of the 
area by individuals is not likely to impact the reproduction or 
survival of any individuals. Given only one UXO/MEC would be detonated 
on any given day and up to only three UXO/MEC would be detonated over 
the 5-year effective period of the LOA, any behavioral response would 
be brief and of a low severity.
    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, PTS or TTS is unlikely to 
impact hearing ability in their more sensitive hearing ranges, or the 
frequencies in which they communicate and echolocate. Regardless, we 
have authorized a limited amount of PTS, but expect any PTS that may 
occur to be within the very low end of their hearing range where harbor 
porpoises are not particularly sensitive, and any PTS would be of small 
magnitude. As such, any PTS would not interfere with key foraging or 
reproductive strategies necessary for reproduction or survival.
    In summary, the amount of take proposed to be authorized across all 
5 years is 20 and 1,304 by Level A harassment and Level B harassment, 
respectively. While harbor porpoises are likely to avoid the area 
during any construction activity discussed herein, as demonstrated 
during European wind farm construction, the time of year in which work 
would occur is when harbor porpoises are not in high abundance, and any 
work that does occur would not result in the species' abandonment of 
the waters off New York. The low magnitude and severity of harassment 
effects is not expected to result in impacts on the reproduction or 
survival of any individuals, let alone have impacts on annual rates of 
recruitment or survival of this stock. No mortality or serious injury 
is anticipated or proposed to be authorized. For these reasons, we have 
preliminarily determined, in consideration of all of the effects of the 
Sunrise Wind's activities combined, that the proposed authorized take 
would have a negligible impact on the Gulf of Maine/Bay of Fundy stock 
of harbor porpoises.

Phocids (Harbor Seals and Gray Seals)

    Neither the harbor seal nor gray seal are listed under the ESA. 
Sunrise Wind requested, and NMFS proposes to authorize that no more 
than 5 and 2,468 harbor seals and 3 and 1,099 gray seals may be taken 
by Level A harassment and Level B harassment, respectively, within any 
one year. These species occur in New Yorkwaters most often in winter, 
when impact pile driving and UXO/MEC detonations would not occur. Seals 
are also more likely to be close to shore such that exposure to impact 
pile driving would be expected to be at lower levels generally (but 
still above NMFS behavioral harassment threshold). The majority of 
takes of these species is from monopile installations, vibratory pile 
driving associated with temporary sheet pile installation and removal, 
and HRG surveys. Research and observations show that pinnipeds in the 
water may be tolerant of anthropogenic noise and activity (a review of 
behavioral reactions by pinnipeds to impulsive and non-impulsive noise 
can be found in Richardson et al. (1995) and Southall et al. (2007)). 
Available data, though limited, suggest that exposures between 
approximately 90 and 140 dB SPL do not appear to induce strong 
behavioral responses in pinnipeds exposed to non-pulse sounds in water 
(Costa et al., 2003; Jacobs and Terhune, 2002; Kastelein et al., 
2006c). Although there was no significant displacement during 
construction as a whole, Russell et al. (2016) found that displacement 
did occur during active pile driving at predicted received levels 
between 168 and 178 dB re 1[micro]Pa(p-p); however seal 
distribution returned to the pre-piling condition within two hours of 
cessation of pile driving. Pinnipeds may not react at all until the 
sound source is approaching (or they approach the sound source) within 
a few hundred meters and then may alert, ignore the stimulus, change 
their behaviors, or avoid the immediate area by swimming away or 
diving. Effects on pinnipeds that are taken by Level B harassment in 
the project area would likely be limited to reactions such as increased 
swimming speeds, increased surfacing time, or decreased foraging (if 
such activity were occurring). Most likely, individuals would simply 
move away from the sound source and be temporarily displaced from those 
areas (see Lucke et al., 2006; Edren et al., 2010; Skeate et al., 2012; 
Russell et al., 2016). Given their documented tolerance of 
anthropogenic sound (Richardson et al., 1995; Southall et al., 2007), 
repeated exposures of individuals of either of these species to levels 
of sound that may cause Level B harassment are unlikely to 
significantly disrupt foraging behavior. Given the low anticipated 
magnitude of impacts from any given exposure, even repeated Level B 
harassment across a few days of some small subset of individuals, which 
could occur, is unlikely to result in impacts on the reproduction or 
survival of any individuals. Moreover, pinnipeds would benefit from the 
mitigation measures described in the Proposed Mitigation section.
    Sunrise Wind requested, and NMFS is proposing to authorize, a small 
amount of take by PTS (16 harbor seals and 7 gray seals) incidental to 
UXO/MEC detonations over the 5-year effective period of the proposed 
rule. As described above, noise from UXO/MEC detonation is low 
frequency and, while any PTS that does occur would fall within the 
lower end of pinniped hearing ranges (50 Hz to 86 kHz), PTS would not 
occur at frequencies where pinniped hearing is most sensitive. In 
summary, any PTS, would be of small degree and not occur across the 
entire, or even most sensitive, hearing range. Hence, any impacts from 
PTS are likely to be of low severity and not interfere with behaviors 
critical to reproduction or survival.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and occurred across Maine, New Hampshire, 
and Massachusetts

[[Page 9090]]

until 2020. Based on tests conducted so far, the main pathogen found in 
the seals belonging to that UME was phocine distemper virus, although 
additional testing to identify other factors that may be involved in 
this UME are underway. Currently, the only active UME is occurring in 
Maine with some harbor and gray seals testing positive for highly 
pathogenic avian in[fllig]uenza (HPAI) H5N1. Although elevated 
strandings continue, neither UME (alone or in combination) provide 
cause for concern regarding population-level impacts to any of these 
stocks. For harbor seals, the population abundance is over 75,000 and 
annual M/SI (350) is well below PBR (2,006) (Hayes et al., 2020). The 
population abundance for gray seals in the United States is over 
27,000, with an estimated overall abundance, including seals in Canada, 
of approximately 450,000. In addition, the abundance of gray seals is 
likely increasing in the U.S. Atlantic, as well as in Canada (Hayes et 
al., 2020).
    Overall, impacts from the Level B harassment take proposed for 
authorization incidental to Sunrise Wind's specified activities would 
be of relatively low magnitude and a low severity. Similarly, while 
some individuals may incur PTS overlapping some frequencies that are 
used for foraging and communication, given the low degree, the impacts 
would not be expected to impact reproduction or survival of any 
individuals. In consideration of all of the effects of Sunrise Wind's 
activities combined, we have preliminarily determined that the 
authorized take will have a negligible impact on harbor seals and gray 
seals.

Preliminary Negligible Impact Determination

    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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the marine mammal 
take from all of Sunrise 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 taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is less than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS proposes to authorize incidental take (by Level A harassment 
and Level B harassment) of 16 species of marine mammal (with 16 managed 
stocks). The maximum number of takes possible within any one year and 
proposed for authorization relative to the best available population 
abundance is less than one-third for all species and stocks potentially 
impacted (i.e., less than 1 percent for 8 stocks and less than 10 
percent for the remaining 8 stocks; see Table 39).
    Based on the analysis contained herein of the proposed activities 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the promulgation of 
rulemakings, NMFS consults internally whenever we propose to authorize 
take for endangered or threatened species, in this case with the NMFS 
Greater Atlantic Regional Field Office (GARFO).
    NMFS is proposing to authorize the take of five marine mammal 
species which are listed under the ESA: the North Atlantic right, sei, 
fin, blue, and sperm whale. The Permit and Conservation Division will 
request initiation of Section 7 consultation with GARFO for the 
issuance of this proposed rulemaking. NMFS will conclude ESA 
consultation prior to reaching a determination regarding the proposed 
issuance of the authorization. The proposed regulations and any 
subsequent LOA(s) would be conditioned such that, in addition to 
measures included in those documents, the applicant would also be 
required to abide by the reasonable and prudent measures and terms and 
conditions of a Biological Opinion and Incidental Take Statement, 
issued by NMFS, pursuant to Section 7 of the Endangered Species Act.

Proposed Promulgation

    As a result of these preliminary determinations, NMFS proposes to 
promulgate an ITA for Sunrise Wind authorizing take, by Level A and B 
harassment, incidental to construction activities associated with the 
Sunrise Wind Offshore Wind Farm project offshore of New York for a 5-
year period from November 20, 2023 through November 19, 2028, provided 
the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. A draft of the proposed rulemaking can 
be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-Sunrise-wind-llc-construction-Sunrise-wind-energy.

Request for Additional Information and Public Comments

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning Sunrise Wind's request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare the final rule and make final determinations on 
whether to issue the requested authorization. This proposed rule and 
referenced documents provide all environmental information relating to 
our proposed action for public review.
    Recognizing, as a general matter, that this action is one of many 
current and future wind energy actions, we invite comment on the 
relative merits of the IHA, single-action rule/LOA, and programmatic 
multi-action rule/LOA approaches, including potential marine mammal 
take impacts resulting from this and other related wind energy actions 
and possible benefits resulting from regulatory certainty and 
efficiency.

[[Page 9091]]

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Sunrise Wind is the sole entity that would be subject to the 
requirements in these proposed regulations, and Sunrise Wind is not a 
small governmental jurisdiction, small organization, or small business, 
as defined by the RFA. Under the RFA, governmental jurisdictions are 
considered to be small if they are governments of cities, counties, 
towns, townships, villages, school districts, or special districts, 
with a population of less than 50,000. Because of this certification, a 
regulatory flexibility analysis is not required and none has been 
prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid 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.
    The Coastal Zone Management Act (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). Additionally, 
regulations implementing the CZMA require non-Federal applicants for 
Federal licenses or permits to submit a consistency certification to 
the state that declares that the proposed activity complies with the 
enforceable policies of the state's approved management program and 
will be conducted in a manner consistent with such program. As 
required, on September 1, 2021, Sunrise Wind submitted a Federal 
consistency certification to the New York State Department of State 
(NYSDOS), Rhode Island Coastal Resources Management Council (RICRMC), 
Massachusetts Office of Coastal Zone Management (MACZM) for approval of 
the Construction and Operations Plan (COP) by BOEM and the issuance of 
an Individual Permit by United States Army Corps of Engineers, under 
section 10 and 14 of the Rivers and Harbors Act and Section 404 of the 
Clean Water Act (15 CFR part 930, subpart E). Sunrise Wind expects a 
decision from NYSDOS on June 13, 2023, RICRMC on April 27, 2023, and 
MACZM on March 30, 2023.
    NMFS has determined that Sunrise Wind's application for an 
authorization to allow the incidental, but not intentional, take of 
small numbers of marine mammals on the outer continental shelf is an 
unlisted activity and, thus, is not, at this time, 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.

List of Subjects in 50 CFR Part 217

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

    Dated: February 1, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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

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

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

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

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


Sec.  217.310  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the taking of marine 
mammals that occurs incidental to activities associated with 
construction of the Sunrise Wind Offshore Wind Farm Project by Sunrise 
Wind, LLC (Sunrise Wind) and those persons it authorizes or funds to 
conduct activities on its behalf in the area outlined in paragraph (b) 
of this section.
    (b) The taking of marine mammals by Sunrise Wind may be authorized 
in a Letter of Authorization (LOA) only if it occurs in the Bureau of 
Ocean Energy Management (BOEM) lease area Outer Continental Shelf 
(OCS)-A-0486 Commercial Lease of Submerged Lands for Renewable Energy 
Development and along export cable route at sea-to-shore transition 
points at Quonset Point in North Kingstown, Rhode Island.
    (c) The taking of marine mammals by Sunrise Wind is only authorized 
if it occurs incidental to the following activities associated with the 
Sunrise Wind Offshore Wind Farm Project:
    (1) Installation of wind turbine generators (WTG) and offshore 
converter substation (OCS-DC) foundations by impact pile driving;
    (2) Installation of temporary cofferdams by vibratory pile driving;
    (3) High-resolution geophysical (HRG) site characterization 
surveys; and,
    (4) Detonation of unexploded ordnances (UXOs) or munitions and 
explosives of concern (MECs).


Sec.  217.311  Effective dates.

    Regulations in this subpart are effective from November 20, 2023-
November 19, 2028.


Sec.  217.312  Permissible methods of taking.

    Under an LOA, issued pursuant to Sec. Sec.  216.106 of this chapter 
and 217.316, Sunrise Wind, and those persons it authorizes or funds to 
conduct activities on its behalf, may incidentally, but not 
intentionally, take marine mammals within the area described in Sec.  
217.310(b) in the following ways, provided Sunrise Wind 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

[[Page 9092]]

mammals by impact pile driving (WTG and OCS-DC monopile foundation 
installation), vibratory pile installation and removal of temporary 
cofferdams, the detonation of UXOs/MECs, and through HRG site 
characterization surveys.
    (b) By Level A harassment, provided take is associated with impact 
pile driving and UXO/MEC detonations.
    (c) The incidental take of marine mammals by the activities listed 
in paragraphs (a) and (b) of this section is limited to the following 
species:

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

Sec.  217.313  Prohibitions.

    Except for the takings described in Sec.  217.312 and authorized by 
an LOA issued under Sec. Sec.  217.316 or 217.317, it is unlawful for 
any person to do any of the following in connection with the activities 
described in this subpart.
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  217.316 
and 217.317.
    (b) Take any marine mammal not specified in Sec.  217.312(c).
    (c) Take any marine mammal specified in the LOA in any manner other 
than as specified in the LOA.
    (d) Take any marine mammal, as specified in Sec.  217.312(c), after 
NMFS determines such taking results in more than a negligible impact on 
the species or stocks of such marine mammals.


Sec.  217.314  Mitigation requirements.

    When conducting the activities identified in Sec. Sec.  217.310(a) 
and 217.312, Sunrise Wind must implement the mitigation measures 
contained in this section and any LOA issued under Sec. Sec.  217.316 
or 217.317 of this subpart. These mitigation measures include, but are 
not limited to:
    (a) General Conditions. (1) A copy of any issued LOA must be in the 
possession of Sunrise Wind and its designees, all vessel operators, 
visual protected species observers (PSOs), passive acoustic monitoring 
(PAM) operators, pile driver operators, and any other relevant 
designees operating under the authority of the issued LOA;
    (2) Sunrise Wind must conduct briefings between construction 
supervisors, construction crews, and the PSO and PAM team prior to the 
start of all construction activities, and when new personnel join the 
work, in order to explain responsibilities, communication procedures, 
marine mammal monitoring and reporting protocols, and operational 
procedures. An informal guide must be included with the Marine Mammal 
Monitoring Plan to aid personnel in identifying species if they are 
observed in the vicinity of the project area;
    (3) Sunrise Wind must instruct all vessel personnel regarding the 
authority of the PSO(s). For example, the vessel operator(s) would be 
required to immediately comply with any call for a shutdown by a PSO. 
Any disagreement between the Lead PSO and the vessel operator would 
only be discussed after shutdown has occurred;
    (4) Sunrise Wind must ensure that any visual observations of an 
ESA-listed marine mammal are communicated to PSOs and vessel captains 
during the concurrent use of multiple project-associated vessels (of 
any size; e.g., construction surveys, crew/supply transfers, etc);
    (5) 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 for each specified activity, pile 
driving and pneumatic hammering activities, and HRG acoustic sources 
must be shut down immediately, unless shutdown is not practicable, or 
be delayed if the activity has not commenced. Impact and vibratory pile 
driving, pneumatic hammering, UXO/MEC detonation, and initiation of HRG 
acoustic sources must not commence or resume until the animal(s) has 
been confirmed to have left the relevant clearance zone or the 
observation time has elapsed with no further sightings. UXO/MEC 
detonations may not occur until the animal(s) has been confirmed to 
have left the relevant clearance zone or the observation time has 
elapsed with no further sightings;
    (6) Prior to and when conducting any in-water construction 
activities and vessel operations, Sunrise Wind personnel (e.g., vessel 
operators, PSOs) must use available sources of information on North 
Atlantic right whale presence in or near the project area including 
daily monitoring of the Right Whale Sightings Advisory System, and 
monitoring of Coast Guard VHF Channel 16 throughout the day to receive 
notification of any sightings and/or information associated with any 
Slow Zones (i.e., Dynamic Management Areas (DMAs) and/or acoustically-
triggered slow zones) to provide situational awareness for both vessel 
operators and PSOs;
    (7) Any marine mammals observed within a clearance or shutdown zone 
must be allowed to remain in the area (i.e., must leave of their own 
volition) prior to commencing impact and vibratory pile driving 
activities, pneumatic hammering, or HRG surveys; and
    (8) Sunrise Wind must treat any large whale sighted by a PSO or 
acoustically detected by a PAM operator as if it were a North Atlantic 
right whale, unless a

[[Page 9093]]

PSO or a PAM operator confirms it is another type of whale.
    (b) Vessel strike avoidance measures: Sunrise Wind must implement 
the following vessel strike avoidance measures:
    (1) Prior to the start of construction activities, all vessel 
operators and crew must receive a protected species training that 
covers, at a minimum:
    (i) Identification of marine mammals and other protected species 
known to occur or which have the potential to occur in the Sunrise Wind 
project area;
    (ii) Training on making observations 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);
    (iii) Training on information and resources available to the 
project personnel regarding the applicability of Federal laws and 
regulations for protected species;
    (iv) Observer training related to these vessel strike avoidance 
measures must be conducted for all vessel operators and crew prior to 
the start of in-water construction activities; and
    (v) Confirmation of marine mammal observer training (including an 
understanding of the LOA requirements) must be documented on a training 
course log sheet and reported to NMFS.
    (2) All vessels must abide by the following:
    (i) All vessel operators and crews, regardless of their vessel's 
size, 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;
    (ii) All vessels must have a visual observer on board who is 
responsible for monitoring the vessel strike avoidance zone for marine 
mammals. Visual observers may be PSO or crew members, but crew members 
responsible for these duties must be provided sufficient training by 
Sunrise Wind to distinguish marine mammals from other phenomena and 
must be able to identify a marine mammal as a North Atlantic right 
whale, other whale (defined in this context as sperm whales or baleen 
whales other than North Atlantic right whales), or other marine mammal. 
Crew members serving as visual observers must not have duties other 
than observing for marine mammals while the vessel is operating over 10 
knots (kns);
    (iii) Year-round and when a vessel is in transit, all vessel 
operators must continuously monitor US Coast Guard VHF Channel 16, over 
which North Atlantic right whale sightings are broadcasted. At the 
onset of transiting and at least once every four hours, vessel 
operators and/or trained crew members must monitor the project's 
Situational Awareness System, WhaleAlert, and the Right Whale Sighting 
Advisory System (RWSAS) for the presence of North Atlantic right whales 
Any observations of any large whale by any Sunrise Wind staff or 
contractors, including vessel crew, must be communicated immediately to 
PSOs, PAM operator, and all vessel captains to increase situational 
awareness. Conversely, any large whale observation or detection via a 
sighting network (e.g., Mysticetus) by PSOs or PAM operators must be 
conveyed to vessel operators and crew;
    (iv) Any observations of any large whale by any Sunrise Wind staff 
or contractor, including vessel crew, must be communicated immediately 
to PSOs and all vessel captains to increase situational awareness;
    (v) All vessels must comply with existing NMFS vessel speed 
regulations in 50 CFR 224.105, as applicable, for North Atlantic right 
whales;
    (vi) In the event that any Slow Zone (designated as a DMA) is 
established that overlaps with an area where a project-associated 
vessel would operate, that vessel, regardless of size, will transit 
that area at 10 kns or less;
    (vii) Between November 1st and April 30th, all vessels, regardless 
of size, must operate port to port (specifically from ports in New 
Jersey, New York, Maryland, Delaware, and Virginia) at 10 kns or less, 
except for vessels while transiting in Narragansett Bay or Long Island 
Sound which have not been demonstrated by best scientific information 
available to provide consistent habitat for North Atlantic right 
whales;
    (viii) All vessels, regardless of size, must immediately reduce 
speed to 10 kns or less when any large whale, mother/calf pairs, or 
large assemblages of non-delphinid cetaceans are observed (within 100 
m) of an underway vessel;
    (ix) All vessels, regardless of size, must immediately reduce speed 
to 10 kns or less when a North Atlantic right whale is sighted, at any 
distance, by anyone on the vessel;
    (x) If a vessel is traveling at greater than 10 kns, in addition to 
the required dedicated visual observer, Sunrise Wind must monitor the 
transit corridor in real-time with PAM prior to and during transits. If 
a North Atlantic right whale is detected via visual observation or PAM 
within or approaching the transit corridor, all crew transfer vessels 
must travel at 10 kns or less for 12 hours following the detection. 
Each subsequent detection triggers an additional 12-hour period at 10 
kns or less. A slowdown in the transit corridor expires when there has 
been no further visual or acoustic detection of North Atlantic right 
whales in the transit corridor for 12 hours;
    (xi) All 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 observers must be equipped 
with alternative monitoring technology 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 
proposed action. Visual observers may be third-party observers (i.e., 
NMFS-approved PSOs) or crew members. Observer training related to these 
vessel strike avoidance measures must be conducted for all vessel 
operators and crew prior to the start of in-water construction 
activities;
    (xii) All vessels must maintain a minimum separation distance of 
500 m from North Atlantic right whales. If underway, all vessels must 
steer a course away from any sighted North Atlantic right whale at 10 
kns or less such that the 500-m minimum separation distance requirement 
is not violated. If a North Atlantic right whale is sighted within 500 
m of an underway vessel, that vessel must shift the engine to neutral. 
Engines must not be engaged until the whale has moved outside of the 
vessel's path and beyond 500 m. If a whale is observed but cannot be 
confirmed as a species other than a North Atlantic right whale, the 
vessel operator must assume that it is a North Atlantic right whale and 
take the vessel strike avoidance measures described in this paragraph 
(b)(2)(xii);
    (xiii) All vessels must maintain a minimum separation distance of 
100 m from sperm whales and baleen whales other than North Atlantic 
right whales. If one of these species is sighted within 100 m of an 
underway vessel, that vessel must shift the engine to neutral. Engines 
must not be engaged until the whale has moved outside of the vessel's 
path and beyond 100 m;
    (xiv) All vessels must, to the maximum extent practicable, attempt 
to maintain a minimum separation distance of 50 m from all delphinid

[[Page 9094]]

cetaceans and pinnipeds, with an exception made for those that approach 
the vessel (e.g., bow-riding dolphins). If a delphinid cetacean or 
pinniped is sighted within 50 m of an underway vessel, that vessel must 
shift the engine to neutral, with an exception made for those that 
approach the vessel (e.g., bow-riding dolphins). Engines must not be 
engaged until the animal(s) has moved outside of the vessel's path and 
beyond 50 m;
    (xv) When a marine mammal(s) is sighted while a vessel is underway, 
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, avoid excessive speed or abrupt changes in direction 
until the animal has left the area). If a marine mammal(s) is sighted 
within the relevant separation distance, the vessel must reduce speed 
and shift the engine to neutral, not engaging the engine(s) until the 
animal(s) is clear of the area. This 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);
    (xvi) All vessels underway must not divert or alter course to avoid 
approaching any marine mammal. Any vessel underway must avoid speed 
over 10 kns or abrupt changes in course direction until the animal is 
out of an on a path away from the separation distances;
    (xvii) For in-water construction heavy machinery activities other 
than impact or vibratory pile driving, if a marine mammal is on a path 
towards or comes within 10 m of equipment, Sunrise Wind must cease 
operations until the marine mammal has moved more than 10 m on a path 
away from the activity to avoid direct interaction with equipment; and
    (xviii) Sunrise Wind must submit a North Atlantic right whale 
vessel strike avoidance plan 90 days prior to commencement of vessel 
use. The plan will, at minimum, describe how PAM, in combination with 
visual observations, will be conducted to ensure the transit corridor 
is clear of right whales. The plan will also provide details on the 
vessel-based observer protocols on transiting vessels.
    (c) Wind turbine generator (WTG) and offshore converter substation 
(OCS-DC) foundation installation. Sunrise Wind must comply with the 
following measures during WTG and OCS-DC installation:
    (1) Seasonal and daily restrictions: (i) Foundation impact pile 
driving activities may not occur January 1 through April 30;
    (ii) No more than three monopiles may be installed per day;
    (iii) Sunrise Wind must not initiate pile driving earlier than 1 
hour after civil sunrise or later than 1.5 hours prior to civil sunset, 
unless Sunrise Wind submits and NMFS approves an Alternative Monitoring 
Plan as part of the Pile Driving and Marine Mammal Monitoring Plan that 
reliably demonstrates the efficacy of their night vision devices; and
    (iv) Monopiles must be no larger than 15 m in diameter, 
representing the larger end of the tapered 7/15 m monopile design. The 
minimum amount of hammer energy necessary to effectively and safely 
install and maintain the integrity of the piles must be used. Maximum 
hammer energies must not exceed 4,000 kilojoules (kJ).
    (2) Noise abatement systems. (i) Sunrise Wind must deploy dual 
noise abatement systems that are capable of achieving, at a minimum, 10 
dB of sound attenuation, during all impact pile driving of foundation 
piles;
    (A) A single big bubble curtain (BBC) must not be used unless 
paired with another noise attenuation device;
    (B) A double big bubble curtain (dBBC) may be used without being 
paired with another noise attenuation device;
    (ii) The bubble curtain(s) must distribute air bubbles using an air 
flow rate of at least 0.5 m\3\/(min*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must make appropriate adjustments to the air supply and operating 
pressure such that the maximum possible sound attenuation performance 
of the bubble curtain(s) is achieved;
    (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; and
    (v) Construction contractors must train personnel in the proper 
balancing of airflow to the ring. Construction contractors must submit 
an inspection/performance report for approval by Sunrise Wind within 72 
hours following the performance test. Corrections to the bubble ring(s) 
to meet the performance standards must occur prior to impact pile 
driving of monopiles. If Sunrise Wind uses a noise mitigation device in 
addition to the BBC, Sunrise Wind must maintain similar quality control 
measures as described here.
    (3) Sound field verification. (i) Sunrise Wind must perform sound 
field verification (SFV) during all impact pile driving of the first 
three monopiles and must empirically determine source levels (peak and 
cumulative sound exposure level), the ranges to the isopleths 
corresponding to the Level A harassment (PTS) and Level B harassment 
thresholds, and estimated transmission loss coefficients;
    (ii) If a subsequent monopile installation location is selected 
that was not represented by previous three locations (i.e., substrate 
composition, water depth), SFV must be conducted;
    (iii) Sunrise Wind may estimate ranges to the Level A harassment 
and Level B harassment isopleths by extrapolating from in situ 
measurements conducted at several distances from the monopiles, and 
must measure received levels at a standard distance of 750 m from the 
monopiles;
    (iv) If SFV measurements on any of the first three piles indicate 
that the ranges to Level A harassment and Level B harassment isopleths 
are larger than those modeled, assuming 10 dB attenuation, Sunrise Wind 
must modify and/or apply additional noise attenuation measures (e.g., 
improve efficiency of bubble curtain(s), modify the piling schedule to 
reduce the source sound, install an additional noise attenuation 
device) before the second pile is installed. Until SFV confirms the 
ranges to Level A harassment and Level B harassment isopleths are less 
than or equal to those modeled, assuming 10 dB attenuation, the 
shutdown and clearance zones must be expanded to match the ranges to 
the Level A harassment and Level B harassment isopleths based on the 
SFV measurements. If the application/use of additional noise 
attenuation measures still does not achieve ranges less than or equal 
to those modeled, assuming 10 dB attenuation, and no other actions can 
further reduce sound levels, Sunrise Wind must expand the clearance and 
shutdown zones according to those identified through SFV, in 
consultation with NMFS;
    (v) If harassment zones are expanded beyond an additional 1,500 m, 
additional PSOs must be deployed on additional platforms, with each 
observer responsible for maintaining watch in no more than 180[deg] and 
of an area with a radius no greater than 1,500 m;
    (vi) If acoustic measurements indicate that ranges to isopleths 
corresponding to

[[Page 9095]]

the Level A harassment and Level B harassment thresholds are less than 
the ranges predicted by modeling (assuming 10 dB attenuation), Sunrise 
Wind may request a modification of the clearance and shutdown zones for 
impact pile driving of monopiles and UXO/MEC detonations. For a 
modification request to be considered by NMFS, Sunrise Wind must have 
conducted SFV on three or more monopiles and on all detonated UXOs/MECs 
thus far to verify that zone sizes are consistently smaller than 
predicted by modeling (assuming 10 dB attenuation). Regardless of SFV 
measurements, the clearance and shutdown zones for North Atlantic right 
whales must not be decreased;
    (vii) If a subsequent monopile installation location is selected 
that was not represented by previous locations (i.e., substrate 
composition, water depth), SFV must be conducted. If a subsequent UXO/
MEC charge weight is encountered and/or detonation location is selected 
that was not representative of the previous locations (i.e., substrate 
composition, water depth), SFV must be conducted;
    (vii) Sunrise Wind must submit a SFV Plan at least 180 days prior 
to the planned start of impact pile driving and any UXO/MEC detonation 
activities. The plan must describe how Sunrise Wind would ensure that 
the first three monopile foundation installation sites selected and 
each UXO/MEC detonation scenario (i.e., charge weight, location) 
selected for SFV are representative of the rest of the monopile 
installation sites and UXO/MEC scenarios. In the case that these sites/
scenarios are not determined to be representative of all other monopile 
installation sites and UXO/MEC detonations, Sunrise Wind must include 
information on how additional sites/scenarios would be selected for 
SFV. The plan must also include methodology for collecting, analyzing, 
and preparing SFV data for submission to NMFS. The plan must describe 
how the effectiveness of the sound attenuation methodology would be 
evaluated based on the results. Sunrise Wind must also provide, as soon 
as they are available but no later than 48 hours after each 
installation, the initial results of the SFV measurements to NMFS in an 
interim report after each monopile for the first three piles and after 
each UXO/MEC detonation; and
    (viii) The SFV plan must also include how operational noise would 
be monitored. Sunrise Wind must estimate source levels (at 10 m from 
the operating foundation) based on received levels measured at 50 m, 
100 m, and 250 m from the pile foundation. These data must be used to 
identify estimated transmission loss rates. Operational parameters 
(e.g., direct drive/gearbox information, turbine rotation rate) as well 
as sea state conditions and information on nearby anthropogenic 
activities (e.g., vessels transiting or operating in the area) must be 
reported.
    (4) Protected species observer and passive acoustic monitoring. (i) 
Sunrise Wind must have a minimum of four PSOs actively observing marine 
mammals before, during, and after (specific times described below) the 
installation of monopiles. At least four PSOs must be actively 
observing for marine mammals. At least two PSOs must be actively 
observing on the pile driving vessel while at least two PSOs must be 
actively observing on a secondary, PSO-dedicated vessel;
    (ii) At least one active PSO on each platform must have a minimum 
of 90 days at-sea experience working in those roles in offshore 
environments with no more than eighteen months elapsed since the 
conclusion of the at-sea experience;
    (iii) At least one acoustic PSO (i.e., passive acoustic monitoring 
(PAM) operator) must be actively monitoring for marine mammals before, 
during and after impact pile driving with PAM; and
    (iv) All visual PSOs and PAM operators monitoring the Sunrise Wind 
project must meet the requirements and qualifications described in 
Sec.  217.315(a) and (b), and (c), respectively and as applicable to 
the specified activity.
    (5) Clearance and shutdown zones. (i) Sunrise Wind must establish 
and implement clearance and shutdown zones (all distances to the 
perimeter are the radii from the center of the pile being driven) as 
described in the LOA for all WTG and OSC-DC foundation installation;
    (ii) Sunrise Wind must use visual PSOs and PAM operators to monitor 
the area around each foundation pile before, during and after pile 
driving. PSOs must visually monitor clearance zones for marine mammals 
for a minimum of 60 minutes prior to commencing pile driving. At least 
one PAM operator must review data from at least 24 hours prior to pile 
driving and actively monitor hydrophones for 60 minutes prior to pile 
driving. Prior to initiating soft-start procedures, all clearance zones 
must be visually confirmed to be free of marine mammals for 30 minutes 
immediately prior to starting a soft-start of pile driving;
    (iii) PSOs must be able to visually clear (i.e., confirm no marine 
mammals are present) an area that extends around the pile being driven 
as described in the LOA. The entire minimum visibility zone must be 
visible (i.e., not obscured by dark, rain, fog, etc.) for a full 30 
minutes immediately prior to commencing impact pile driving (minimum 
visibility zone size dependent on season);
    (iv) If a marine mammal is observed entering or within the relevant 
clearance zone prior to the initiation of impact pile driving 
activities, pile driving must be delayed and must not begin until 
either the marine mammal(s) has voluntarily left the specific clearance 
zones and have been visually or acoustically confirmed beyond that 
clearance zone, or, when specific time periods have elapsed with no 
further sightings or acoustic detections. The specific time periods are 
15 minutes for small odontocetes and 30 minutes for all other marine 
mammal species;
    (v) The clearance zone may only be declared clear if no confirmed 
North Atlantic right whale acoustic detections (in addition to visual) 
have occurred within the PAM clearance zone during the 60-minute 
monitoring period. Any large whale sighting by a PSO or detected by a 
PAM operator that cannot be identified by species must be treated as if 
it were a North Atlantic right whale;
    (vi) If a marine mammal is observed entering or within the 
respective shutdown zone, as defined in the LOA, after impact pile 
driving has begun, the PSO must call for a temporary shutdown of impact 
pile driving;
    (vii) Sunrise Wind must immediately cease pile driving if a PSO 
calls for shutdown, unless shutdown is not practicable due to imminent 
risk of injury or loss of life to an individual, pile refusal, or pile 
instability. In this situation, Sunrise Wind must reduce hammer energy 
to the lowest level practicable;
    (viii) 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 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 
Sunrise Wind must use the lowest hammer energy practicable to maintain 
stability;
    (ix) If impact 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 is no longer observed or 30

[[Page 9096]]

minutes has elapsed since the last detection;
    (x) Upon re-starting pile driving, soft-start protocols must be 
followed.
    (6) Soft-start. (i) Sunrise Wind must utilize a soft-start protocol 
for impact pile driving of monopiles by performing 4-6 strikes per 
minute at 10 to 20 percent of the maximum hammer energy, for a minimum 
of 20 minutes;
    (ii) Soft-start must occur at the beginning of monopile 
installation and at any time following a cessation of impact pile 
driving of 30 minutes or longer; and
    (iii) 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 30 minutes for all 
other species.
    (d) Cable landfall construction. Sunrise Wind must comply with the 
following measures during cable landfall construction:
    (1) Daily restrictions. (i) Sunrise Wind must conduct vibratory 
pile driving or pneumatic hammering during daylight hours only;
    (ii) [Reserved].
    (2) PSO use. (i) All visual PSOs monitoring the Sunrise Wind 
project must meet the requirements and qualifications described in 
Sec.  217.315(a) and (b), as applicable to the specified activity; and
    (ii) Sunrise Wind must have a minimum of two PSOs on active duty 
during any installation and removal of the temporary sheet piles, or 
casing pipes and goal posts. These PSOs must always be located at the 
best vantage point(s) on the vibratory pile driving platform or 
secondary platform in the immediate vicinity of the vibratory pile 
driving platform, in order to ensure that appropriate visual coverage 
is available for the entire visual clearance zone and as much of the 
Level B harassment zone, as possible.
    (3) Clearance and shutdown zones. (i) Sunrise Wind must establish 
and implement clearance and shutdown zones as described in the LOA;
    (ii) Prior to the start of pneumatic hammering or vibratory pile 
driving activities, at least two PSOs must monitor the clearance zone 
for 30 minutes, continue monitoring during pile driving and for 30 
minutes post pile driving;
    (iii) If a marine mammal is observed entering or is observed within 
the clearance zones, piling and hammering must not commence until the 
animal has exited the zone or a specific amount of time has elapsed 
since the last sighting. The specific amount of time is 30 minutes for 
large whales and 15 minutes for dolphins, porpoises, and pinnipeds;
    (iv) If a marine mammal is observed entering or within the 
respective shutdown zone, as defined in the LOA, after vibratory pile 
driving or hammering has begun, the PSO must call for a temporary 
shutdown of vibratory pile driving or hammering;
    (v) Sunrise Wind must immediately cease pile driving or pneumatic 
hammering if a PSO calls for shutdown, unless shutdown is not 
practicable due to imminent risk of injury or loss of life to an 
individual, pile refusal, or pile instability; and
    (vi) Pile driving must not restart until either the marine 
mammal(s) has voluntarily left the specific clearance zones and have 
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 30 minutes for all other marine 
mammal species.
    (e) UXO/MEC detonation. Sunrise wind must comply with the following 
measures related to UXO/MEC detonation:
    (1) General. (i) Sunrise Wind must only detonate a maximum of three 
UXO/MECs, of varying sizes;
    (ii) Upon encountering a UXO/MEC of concern, Sunrise Wind may only 
resort to high-order removal (i.e., detonation) if all other means of 
removal are impracticable;
    (iii) Sunrise Wind must utilize a noise abatement system (e.g., 
bubble curtain or similar noise abatement device) around all UXO/MEC 
detonations and operate that system in a manner that achieves the 
maximum noise attenuation levels practicable.
    (2) Seasonal and daily restrictions. (i) Sunrise Wind must not 
detonate UXOs/MECs from December 1 through April 30, annually; and
    (ii) Sunrise Wind must only detonate UXO/MECs during daylight 
hours.
    (3) PSO and PAM use. (i) All visual PSOs and PAM operators used for 
the Sunrise Wind project must meet the requirements and qualifications 
described in Sec.  217.315(a), (b), and (c), respectively and as 
applicable to the specified activity; and
    (ii) Sunrise Wind must use at least 2 visual PSOs on each platform 
(i.e., vessels, plane) and one PAM operator to monitor for marine 
mammals in the clearance zones prior to detonation. If the clearance 
zone is larger than 2 km (based on charge weight), Sunrise Wind must 
deploy a secondary PSO vessel. If the clearance is larger than 5 km 
(based on charge weight), an aerial survey must be conducted.
    (4) Clearance zones. (i) Sunrise Wind must establish and implement 
clearance zones for UXO/MEC detonation using both visual and acoustic 
monitoring, as described in the LOA;
    (ii) Clearance zones must be fully visible for at least 60 minutes 
and all marine mammal(s) must be confirmed to be outside of the 
clearance zone for at least 30 minutes prior to detonation. PAM must 
also be conducted for at least 60 minutes prior to detonation and the 
zone must be acoustically cleared during this time; and
    (iii) If a marine mammal is observed entering or within the 
clearance zone prior to denotation, the activity must be delayed. 
Detonation may only commence if all marine mammals have been confirmed 
to have voluntarily left the clearance zones and been visually 
confirmed to be beyond the clearance zone, or when 60 minutes have 
elapsed without any redetections for whales (including the North 
Atlantic right whale) or 15 minutes have elapsed without any 
redetections of delphinids, harbor porpoises, or seals.
    (5) Sound field verification. (i) During each UXO/MEC detonation, 
Sunrise Wind must empirically determine source levels (peak and 
cumulative sound exposure level), the ranges to the isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds, and estimated transmission loss coefficient(s); and
    (ii) If SFV measurements on any of the detonations indicate that 
the ranges to Level A harassment and Level B harassment thresholds are 
larger than those modeled, assuming 10 dB attenuation, Sunrise Wind 
must modify the ranges, with approval from NMFS, and/or apply 
additional noise attenuation measures (e.g., improve efficiency of 
bubble curtain(s), install an additional noise attenuation device) 
before the next detonation event.
    (f) HRG surveys. Sunrise Wind must comply with the following 
measures during HRG Surveys:
    (1) General. (i) All personnel with responsibilities for marine 
mammal monitoring must participate in joint, onboard briefings that 
would be led by the vessel operator and the Lead PSO, prior to the 
beginning of survey activities. The briefing must be repeated whenever 
new relevant personnel (e.g., new PSOs, acoustic source operators,

[[Page 9097]]

relevant crew) join the survey operation before work commences;
    (ii) Sunrise Wind must deactivate acoustic sources during periods 
where no data is being collected, except as determined to be necessary 
for testing. Unnecessary use of the acoustic source(s) is prohibited; 
and
    (iii) Any large whale sighted by a PSO within 1 km of the boomer, 
sparker, or CHIRP that cannot be identified by species must be treated 
as if it were a North Atlantic right whale.
    (2) PSO use. (i) Sunrise Wind must use at least one PSO during 
daylight hours and two PSOs during nighttime operations, per vessel;
    (ii) PSOs must establish and monitor the appropriate clearance and 
shutdown zones (i.e., radial distances from the acoustic source in-use 
and not from the vessel); and
    (iii) PSOs must begin visually monitoring 30 minutes prior to the 
initiation of the specified acoustic source (i.e., ramp-up, if 
applicable), through 30 minutes after the use of the specified acoustic 
source has ceased.
    (3) Ramp-up. (i) Any ramp-up activities of boomers, sparkers, and 
CHIRPs must only commence when visual clearance zones are fully visible 
(e.g., not obscured by darkness, rain, fog, etc.) and clear of marine 
mammals, as determined by the Lead PSO, for at least 30 minutes 
immediately prior to the initiation of survey activities using a 
specified acoustic source;
    (ii) Prior to a ramp-up procedure starting, the operator must 
notify the Lead PSO of the planned start of the ramp-up. This 
notification time must not be less than 60 minutes prior to the planned 
ramp-up activities as all relevant PSOs must monitor the clearance zone 
for 30 minutes prior to the initiation of ramp-up; and
    (iii) Prior to starting the survey and after receiving confirmation 
from the PSOs that the clearance zone is clear of any marine mammals, 
Sunrise Wind must ramp-up sources to half power for five minutes and 
then proceed to full power, unless the source operates on a binary on/
off switch in which case ramp-up is not feasible. Ramp-up activities 
would be delayed if a marine mammal(s) enters its respective shutdown 
zone. Ramp-up would only be reinitiated if the animal(s) has been 
observed exiting its respective shutdown zone or until additional time 
has elapsed with no further sighting. The specific time periods are 15 
minutes for small odontocetes and seals, and 30 minutes for all other 
species.
    (4) Clearance and shutdown zones. (i) Sunrise Wind must establish 
and implement clearance zones as described in the LOA;
    (ii) Sunrise Wind 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 and 
PSOs are not actively monitoring;
    (iii) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up 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 seals, and 
30 minutes for all other species;
    (iv) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(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;
    (v) Once the survey has commenced, Sunrise Wind must shut down 
boomers, sparkers, and CHIRPs if a marine mammal enters a respective 
shutdown zone;
    (vi) In cases when the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations would be allowed to 
continue (i.e., no shutdown is required) so long as no marine mammals 
have been detected;
    (vii) The use of boomers, sparkers, and CHIRPS would not be allowed 
to 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;
    (viii) Sunrise Wind must immediately shutdown any boomer, sparker, 
or CHIRP acoustic source if a marine mammal is sighted entering or 
within its respective shutdown zones. The shutdown requirement does not 
apply to small delphinids of the following genera: Delphinus, Stenella, 
Lagenorhynchus, and Tursiops. If there is uncertainty regarding the 
identification of a marine mammal species (i.e., whether the observed 
marine mammal belongs to one of the delphinid genera for which shutdown 
is waived), the PSOs must use their best professional judgment in 
making the decision to call for a shutdown. Shutdown is required if a 
delphinid that belongs to a genus other than those specified here is 
detected in the shutdown zone;
    (ix) If a boomer, sparker, or CHIRP is shut down for reasons other 
than mitigation (e.g., mechanical difficulty) for less than 30 minutes, 
it may be activated again without ramp-up only if:
    (A) PSOs have maintained constant observation; and
    (B) No additional detections of any marine mammal occurred within 
the respective shutdown zones; and
    (x) If a boomer, sparker, or CHIRP was shut down for a period 
longer than 30 minutes, then all clearance and ramp-up procedures must 
be initiated.
    (5) Autonomous survey vehicle (ASV): Sunrise Wind must use and ASV 
during HRG Surveys and comply with the following requirements:
    (i) The ASV must remain with 800 m (2,635 ft) of the primary vessel 
while conducting survey operations;
    (ii) Two PSOs must be stationed on the mother vessel at the best 
vantage points to monitor the clearance and shutdown zones around the 
ASV;
    (iii) At least one PSO must monitor the output of a thermal.high-
definition camera installed on the mother vessel to monitor the field-
of-view around the ASV using a hand-held tablet; and
    (iv) During periods of reduced visibility (e.g., darkness, rain, or 
fog), PSOs must use night-vision goggles with thermal clip-ons and a 
hand-held spotlight to monitor the clearance and shutdown zones around 
the ASV.
    (g) Fisheries Monitoring. (i) All captains and crew conducting 
trawl surveys will be trained in marine mammal detection and 
identification;
    (ii) Survey vessels will adhere to all vessel mitigation measures 
(see Proposed Mitigation section);
    (iii) Marine mammal monitoring will be conducted by the captain 
and/or a member of the scientific crew before (15 minutes prior to 
within 1 nm), during, and after haul back;
    (iv) Trawl operations will commence as soon as possible once the 
vessel arrives on station;
    (v) If a marine mammal (other than dolphins and porpoises) is 
sighted within 1 nm of the planned location in the 15 minutes before 
gear deployment Sunrise Wind will delay setting the trawl until marine 
mammals have not been resighted for 15 minutes, or Sunrise Wind may 
move the vessel away from the marine mammal to a different section of 
the sampling area. If, after moving on, marine mammals are still 
visible from the vessel, Sunrise Wind may decide to move again or to 
skip the station;

[[Page 9098]]

    (vi) Gear will not be deployed if marine mammals are observed 
within the area and if a marine mammal is deemed to be at risk of 
interaction, all gear will be immediately removed;
    (vii) Sunrise Wind will maintain visual monitoring effort during 
the entire period of time that trawl gear is in the water 
(i.e.,throughout gear deployment, fishing, and retrieval). If marine 
mammals are sighted before the gear is fully removed from the water, 
Sunrise Wind will take the most appropriate action to avoid marine 
mammal interaction;
    (viii) Limit tow time to 20 minutes and monitoring for marine 
mammals throughout gear deployment, fishing, and retrieval;
    (ix) Sunrise Wind will open the codend of the net close to the 
deck/sorting area to avoid damage to animals that may be caught in 
gear; and
    (x) Trawl nets will be fully cleaned and repaired (if damaged) 
before setting again.


Sec.  217.315  Requirements for monitoring and reporting.

    (a) PSO Qualifications. (1) Sunrise Wind must employ qualified, 
trained visual and acoustic PSOs to conduct marine mammal monitoring 
during activities requiring PSO monitoring. PSO requirements are as 
follows:
    (i) Sunrise Wind must use independent, dedicated, qualified PSOs, 
meaning that the PSOs 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 vessel 
crew with regard to the presence of protected species and mitigation 
requirements;
    (ii) All PSOs must be approved by NMFS. Sunrise Wind must submit 
PSO resumes for NMFS' review and approval at least 60 days prior to 
commencement of in-water construction activities requiring PSOs. 
Resumes must include dates of training and any prior NMFS approval, as 
well as dates and description of last experience, and must be 
accompanied by information documenting successful completion of an 
acceptable training course. NMFS shall be allowed three weeks to 
approve PSOs from the time that the necessary information is received 
by NMFS, after which PSOs meeting the minimum requirements will 
automatically be considered approved;
    (iii) 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);
    (iv) All PSOs must be trained in 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;
    (v) PSOs must have sufficient writing skills to document all 
observations, including but not limited to:
    (A) The number and species of marine mammals observed;
    (B) The dates and times when in-water construction activities were 
conducted;
    (C) The dates and time when in-water construction activities were 
suspended to avoid potential incidental injury of marine mammals from 
construction noise within a defined shutdown zone; and
    (D) Marine mammal behavior.
    (vi) All PSOs must be able to communicate orally, by radio, or in-
person with Sunrise Wind project personnel;
    (vii) PSOs must have sufficient training, orientation, or 
experience with construction operations to provide for their own 
personal safety during observations;
    (A) All PSOs must complete a Permits and Environmental Compliance 
Plan training and a 2-day refresher session that will be held with the 
PSO provider and Project compliance representative(s) prior to the 
start of construction activities;
    (B) [Reserved];
    (viii) At least one PSO must have prior experience working as an 
observer. Other PSOs may substitute education (i.e., degree in 
biological science or related field) or training for experience;
    (ix) One PSO for each activity (i.e., foundation installation, 
sheet piles or casing pipe installation and removal, HRG surveys, UXO/
MEC detonation) must be designated as the Lead PSO. The Lead PSO must 
have a minimum of 90 days of at-sea experience working in an offshore 
environment and would be required to have no more than eighteen months 
elapsed since the conclusion of their last at-sea experience;
    (x) At a minimum, at least one PSO located on each observation 
platform (either vessel-based or aerial-based) must have a minimum of 
90 days of at-sea experience working in an offshore environment and 
would be required to have no more than eighteen months elapsed since 
the conclusion of their last at-sea experiences. Any new and/or 
inexperienced PSOs would be paired with an experienced PSO;
    (xi) PSOs must monitor all clearance and shutdown zones prior to, 
during, and following impact pile driving, vibratory pile driving, 
pneumatic hammering, UXO/MEC detonations, and during HRG surveys that 
use boomers, sparkers, and CHIRPs (with specific monitoring durations 
described in Sec.  217.315(b)(2)(iii), Sec.  217.315(b)(3)(iv), Sec.  
217.315(b)(4)(ii), and Sec.  217.315(b)(5)(iii). PSOs must also monitor 
the Level B harassment zones and document any marine mammals observed 
within these zones, to the extent practicable;
    (xii) PSOs must be located on the best available vantage point(s) 
on the primary vessel(s) (i.e., pile driving vessel, UXO/MEC vessel, 
HRG survey vessel) and on other dedicated PSO vessels (e.g., additional 
UXO/MEC vessels) or aerial platforms, as applicable and necessary, to 
allow them appropriate coverage of the entire visual shutdown zone(s), 
clearance zone(s), and as much of the Level B harassment zone as 
possible. These vantage points must maintain a safe work environment; 
and
    (xiii) Acoustic PSOs must complete specialized training for 
operating passive acoustic monitoring (PAM) systems and must 
demonstrate familiarity with the PAM system on which they must be 
working. PSOs may act as both acoustic and visual observers (but not 
simultaneously), so long as they demonstrate that their training and 
experience are sufficient to perform each task.
    (b) Other PSO requirements. (1) General.
    (i) All PSOs must be located at the best vantage point(s) on the 
primary vessel, dedicated PSO vessels, and aerial platform in order to 
ensure 360[deg] visual coverage of the entire clearance and shutdown 
zones around the vessels, and as much of the Level B harassment zone as 
possible;
    (ii) During all observation periods, PSOs must use high 
magnification (25x) binoculars, standard handheld (7x) binoculars, and 
the naked eye to search continuously for marine mammals. During impact 
pile driving and UXO/MEC detonation events, at least one PSO on the 
primary pile driving or UXO/MEC vessels must be equipped with Big Eye 
binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; 
height control) of appropriate quality. These must be pedestal mounted 
on the deck at the most appropriate vantage point that provides for 
optimal sea surface observation and PSO safety; and

[[Page 9099]]

    (iii) PSOs must not exceed 4consecutive 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.
    (2) WTG and OCS-DC foundation installation. (i) At least four PSOs 
must be actively observing marine mammals before, during, and after 
installation of foundation piles (monopiles). At least two PSOs must be 
stationed and observing on the pile driving vessel and at least two 
PSOs must be stationed on a secondary, PSO-dedicated vessel. 
Concurrently, at least one acoustic PSO (i.e., PAM operator) must be 
actively monitoring for marine mammals with PAM before, during and 
after impact pile driving;
    (ii) If PSOs cannot visually monitor the minimum visibility zone at 
all times using the equipment described in paragraph (b)(1)(ii) of this 
section, impact pile driving operations must not commence or must 
shutdown if they are currently active;
    (iii) All PSOs, including PAM operators, must begin monitoring 60 
minutes prior to pile driving, during, and for 30 minutes after an 
activity. The impact pile driving of monopiles must only commence when 
the minimum visibility zone is fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and the clearance zones are clear of marine 
mammals for at least 30 minutes, as determined by the Lead PSO, 
immediately prior to the initiation of impact pile driving;
    (iv) For North Atlantic right whales, any visual or acoustic 
detection must trigger a delay to the commencement of pile driving. In 
the event that a large whale is sighted or acoustically detected that 
cannot be confirmed by species, it must be treated as if it were a 
North Atlantic right whale; and
    (v) Following a shutdown, monopile installation must not recommence 
until the minimum visibility zone is fully visible and clear of marine 
mammals for 30 minutes.
    (3) Cable landfall construction. (i) At least two PSOs must be on 
active duty during all activities related to the installation and 
removal of sheet piles or casing pipe;
    (ii) These PSOs must be located at appropriate vantage points on 
the vibratory pile driving or pneumatic hammering platform or secondary 
platform in the immediate vicinity of the vibratory pile driving or 
pneumatic hammering platforms;
    (iii) PSOs must ensure that there is appropriate visual coverage 
for the entire clearance zone and as much of the Level B harassment 
zone as possible; and
    (iv) PSOs must monitor the clearance zone for the presence of 
marine mammals for 30 minutes before, throughout the installation of 
the sheet piles and casing pipes, and for 30 minutes after all 
vibratory pile driving or pneumatic hammering activities have ceased. 
Sheet pile or casing pipe installation shall only commence when visual 
clearance zones are fully visible (e.g., not obscured by darkness, 
rain, fog, etc.) and clear of marine mammals, as determined by the Lead 
PSO, for at least 30 minutes immediately prior to initiation of 
vibratory pile driving or pneumatic hammering.
    (4) UXO/MEC detonation. (i) At least two PSOs must be on active 
duty on each observing platform (i.e., vessel, plane) prior to, during, 
and after UXO/MEC detonations. Concurrently, at least one acoustic PSO 
(i.e., PAM operator) must be actively monitoring for marine mammals 
with PAM before, during and after UXO/MEC detonations;
    (ii) All PSOs, including PAM operators, must begin monitoring 60 
minutes prior to UXO/MEC detonation, during detonation, and for 30 
minutes after detonation;
    (iii) Sunrise Wind must ensure that clearance zones are fully (100 
percent) monitored;
    (iv) For detonation areas larger than 2 km, Sunrise Wind must use a 
secondary vessel to monitor. For any additional vessels determined to 
be necessary, two PSOs must be used and located at the appropriate 
vantage point on the vessel. These additional PSOs would maintain watch 
during the same time period as the PSOs on the primary monitoring 
vessel; and
    (v) For detonation areas larger than 5 km, Sunrise Wind must use an 
aircraft, in addition to the primary monitoring vessel, to monitor for 
marine mammals. Two PSOs must be used and located at the appropriate 
vantage point on the aircraft. These additional PSOs would maintain 
watch during the same time period as the PSOs on the primary monitoring 
vessel.
    (5) HRG surveys. (i) Between four and six PSOs must be present on 
every 24-hour survey vessel and two to three PSOs must be present on 
every 12-hour survey vessel. At least one PSO must be on active duty 
during HRG surveys conducted during daylight and at least two PSOs must 
be on activity duty during HRG surveys conducted at night;
    (ii) During periods of low visibility (e.g., darkness, rain, fog, 
etc.), PSOs must use alternative technology (i.e., infrared/thermal 
camera) to monitor the clearance and shutdown zones;
    (iii) PSOs on HRG vessels must begin monitoring 30 minutes prior to 
activating boomers, sparkers, or CHIRPs, during use of these acoustic 
sources, and for 30 minutes after use of these acoustic sources has 
ceased;
    (iv) Any observations of marine mammals must be communicated to 
PSOs on all nearby survey vessels during concurrent HRG surveys; and
    (v) During daylight hours when survey equipment is not operating, 
Sunrise Wind must ensure that visual PSOs conduct, as rotation 
schedules allow, observations for comparison of sighting rates and 
behavior with and without use of the specified acoustic sources. Off-
effort PSO monitoring must be reflected in the monthly PSO monitoring 
reports.
    (c) PAM operator requirements--(1) General. (i) PAM operators must 
have completed specialized training for operating PAM systems prior to 
the start of monitoring activities, including identification of 
species-specific mysticete vocalizations (e.g., North Atlantic right 
whales);
    (ii) During use of any real-time PAM system, at least one PAM 
operator must be designated to monitor each system by viewing data or 
data products that would be streamed in real-time or in near real-time 
to a computer workstation and monitor;
    (iii) 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 (i.e., Mysticetus or 
similar system) and acoustic data analysis software) available wherever 
they are stationed;
    (iv) Visual PSOs must remain in contact with the PAM operator 
currently on duty regarding any animal detection that would be 
approaching or found within the applicable zones no matter where the 
PAM operator is stationed (i.e., onshore or on a vessel);
    (v) The PAM operator must inform the Lead PSO on duty of animal 
detections approaching or within applicable ranges of interest to the 
pile driving activity via the data collection software system (i.e., 
Mysticetus or similar system) who will be responsible for requesting 
that the designated crewmember implement the necessary mitigation 
procedures (i.e., delay or shutdown);
    (vi) PAM operators must be on watch for a maximum of four 
consecutive hours, followed by a break of at least two hours between 
watches; and
    (vii) A Passive Acoustic Monitoring Plan must be submitted to NMFS 
for review and approval at least 180 days prior to the planned start of 
monopile installation. The authorization to take

[[Page 9100]]

marine mammals would be contingent upon NMFS' approval of the PAM Plan.
    (2) WTG and OCS-DC foundation installation. (i) Sunrise Wind must 
use a minimum of one PAM operator before, during, and after impact pile 
driving activities. The PAM operator must assist visual PSOs in 
ensuring full coverage of the clearance and shutdown zones;
    (ii) PAM operators must assist the visual PSOs in monitoring by 
conducting PAM activities 60 minutes prior to any impact pile driving, 
during, and after for 30 minutes for the appropriate size PAM clearance 
zone (dependent on season). The entire minimum visibility zone must be 
clear for at least 30 minutes, with no marine mammal detections within 
the visual or PAM clearance zones prior to the start of impact pile 
driving;
    (iii) Any acoustic monitoring during low visibility conditions 
during the day would complement visual monitoring efforts and would 
cover an area of at least the Level B harassment zone around each 
monopile foundation;
    (iv) Any visual or acoustic detection within the clearance zones 
must trigger a delay to the commencement of pile driving. In the event 
that a large whale is sighted or acoustically detected that cannot be 
identified by species, it must be treated as if it were a North 
Atlantic right whale. Following a shutdown, monopile installation shall 
not recommence until the minimum visibility zone is fully visible and 
clear of marine mammals for 30 minutes and no marine mammals have been 
detected acoustically within the PAM clearance zone for 30 minutes; and
    (v) Sunrise Wind must submit a Pile Driving and Marine Mammal 
Monitoring Plan to NMFS for review and approval at least 180 days 
before the start of any pile driving. The plan must include final 
project design related to pile driving (e.g., number and type of piles, 
hammer type, noise abatement systems, anticipated start date, etc.) and 
all information related to PAM PSO monitoring protocols for pile-
driving and visual PSO protocols for all activities.
    (3) UXO/MEC detonation. (i) Sunrise Wind must use a minimum of one 
PAM operator before, during, and after UXO/MEC detonations. The PAM 
operator must assist visual PSOs in ensuring full coverage of the 
clearance and shutdown zones;
    (ii) PAM must be conducted for at least 60 minutes prior to 
detonation, during, and for 30 minutes after detonation;
    (iii) The PAM operator must monitor to and beyond the clearance 
zone for large whales; and
    (iv) Sunrise Wind must prepare and submit a UXO/MEC and Marine 
Mammal Monitoring Plan to NMFS for review and approval at least 180 
days before the start of any UXO/MEC detonations. The plan must include 
final project design and all information related to visual and PAM PSO 
monitoring protocols for UXO/MEC detonations.
    (d) Data Collection and Reporting. (1) Prior to initiation of 
project activities, Sunrise Wind must demonstrate in a report submitted 
to NMFS (at [email protected] and [email protected]) 
that all required training for Sunrise Wind personnel (including the 
vessel crews, vessel captains, PSOs, and PAM operators) has been 
completed;
    (2) Sunrise Wind must use a standardized reporting system from 
November 20, 2023 through November 19, 2028, the effective period of 
this subpart and the LOA. All data collected related to the Sunrise 
Wind project must be recorded using industry-standard softwares (e.g., 
Mysticetus or a similar software) that is installed on field laptops 
and/or tablets. For all monitoring efforts and marine mammal sightings, 
Sunrise Wind must collect the following information and report it to 
NMFS:
    (i) Date and time that monitored activity begins or ends;
    (ii) Construction activities occurring during each observation 
period;
    (iii) Watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
    (iv) PSO who sighted the animal;
    (v) Time of sighting;
    (vi) Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
    (vii) Water conditions (e.g., sea state, tide state, water depth);
    (viii) All marine mammal sightings, regardless of distance from the 
construction activity;
    (xi) Species (or lowest possible taxonomic level possible);
    (x) Pace of the animal(s);
    (xi) Estimated number of animals (minimum/maximum/high/low/best);
    (xii) Estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.);
    (xiii) 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);
    (xiv) 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;
    (xv) Animal's closest distance and bearing from the pile being 
driven, UXO/MEC, or specified HRG equipment and estimated time entered 
or spent within the Level A harassment and/or Level B harassment zones;
    (xvi) Construction activity at time of sighting (e.g., vibratory 
installation/removal, impact pile driving, UXO/MEC detonation, 
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, post-UXO/MEC detonation, etc.);
    (xvii) Marine mammal occurrence in Level A harassment or Level B 
harassment zones;
    (xviii) Description of any mitigation-related action implemented, 
or mitigation-related actions called for but not implemented, in 
response to the sighting (e.g., delay, shutdown, etc.) and time and 
location of the action; and
    (xix) Other human activity in the area.
    (3) For all real-time acoustic detections of marine mammals, the 
following must be recorded and included in weekly, monthly, annual, and 
final reports:
    (i) Location of hydrophone (latitude & longitude; in Decimal 
Degrees) and site name;
    (ii) Bottom depth and depth of recording unit (in meters);
    (iii) Recorder (model & manufacturer) and platform type (i.e., 
bottom-mounted, electric glider, etc.), and instrument ID of the 
hydrophone and recording platform (if applicable);
    (iv) Time zone for sound files and recorded date/times in data and 
metadata (in relation to UTC. i.e., EST time zone is UTC-5);
    (v) Duration of recordings (start/end dates and times; in ISO 8601 
format, yyyy-mm-ddTHH:MM:SS.sssZ);
    (vi) Deployment/retrieval dates and times (in ISO 8601 format);
    (vii) Recording schedule (must be continuous);
    (viii) Hydrophone and recorder sensitivity (in dB re. 1 [mu]Pa);
    (ix) Calibration curve for each recorder;
    (x) Bandwidth/sampling rate (in Hz);
    (xi) Sample bit-rate of recordings; and,
    (xii) Detection range of equipment for relevant frequency bands (in 
meters).
    (4) For each detection, the following information must be noted:
    (i) Species identification (if possible);
    (ii) Call type and number of calls (if known);
    (iii) Temporal aspects of vocalization (date, time, duration, etc.; 
date times in ISO 8601 format);

[[Page 9101]]

    (iv) Confidence of detection (detected, or possibly detected);
    (v) Comparison with any concurrent visual sightings;
    (vi) Location and/or directionality of call (if determined) 
relative to acoustic recorder or construction activities;
    (vii) Location of recorder and construction activities at time of 
call;
    (viii) Name and version of detection or sound analysis software 
used, with protocol reference;
    (xi) Minimum and maximum frequencies viewed/monitored/used in 
detection (in Hz); and
    (x) Name of PAM operator(s) on duty.
    (5) Weekly reports are required from Sunrise Wind and must adhere 
to the following standards:
    (i) Sunrise Wind must compile and submit weekly PSO, PAM, and sound 
field verification (SFV) reports to NMFS (at [email protected] and 
[email protected]) that document the daily start and 
stop of all pile driving, HRG survey, or UXO/MEC detonation 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) used and its performance. Weekly reports are due on 
Wednesday for the previous week (Sunday--Saturday) and must include the 
information required under this section. The weekly report will 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;
    (ii) [Reserved].
    (6) Monthly reports are required from Sunrise Wind and must adhere 
to the following standards:
    (i) Sunrise Wind must compile and submit monthly reports to NMFS 
(at [email protected] and [email protected]) that 
include a summary of all information in the weekly reports, including 
project activities carried out in the previous month, vessel transits 
(number, type of vessel, and route), number of piles installed, number 
of UXO/MEC detonations, all detections of marine mammals, and any 
mitigative action taken. Monthly reports are due on the 15th of the 
month for the previous month. The monthly report must also identify 
which turbines become operational and when (a map must be provided). 
Once foundation installation is complete, monthly reports are no longer 
required;
    (ii) [Reserved].
    (7) Annual reports are required from Sunrise Wind and must adhere 
to the following standards:
    (i) Sunrise Wind must submit an annual report to NMFS (at 
[email protected] and [email protected]) no later than 
90 days following the end of a given calendar year. Sunrise Wind must 
provide a final report within 30 days following resolution of comments 
on the draft report. The report must detail the following information 
and the information specified in paragraphs (d)(2)(i) through (xix), 
(d)(3)(i) through (xii), and (d)(4)(i) through (x) of this section:
    (A) 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 zones with comparison to authorized take of marine 
mammals for the associated activity type;
    (B) Marine mammal detections and behavioral observations before, 
during, and after each activity;
    (C) What mitigation measures were implemented (i.e., number of 
shutdowns or clearance zone delays, etc.) or, if no mitigative actions 
was taken, why not;
    (D) Operational details (i.e., days of impact and vibratory pile 
driving, days/amount of HRG survey effort, total number and charge 
weights related to UXO/MEC detonations, etc.);
    (E) SFV results;
    (F) Any PAM systems used;
    (G) The results, effectiveness, and which noise abatement systems 
were used during relevant activities (i.e., impact pile driving, UXO/
MEC detonation);
    (H) Summarized information related to Situational Reporting; and
    (I) Any other important information relevant to the Sunrise Wind 
project, including additional information that may be identified 
through the adaptive management process.
    (ii) The final annual report must be prepared and submitted within 
30 calendar days following the receipt of any comments from NMFS on the 
draft report. If no comments are received from NMFS within 60 calendar 
days of NMFS' receipt of the draft report, the report must be 
considered final.
    (8) Final reports are required from Sunrise Wind and must adhere to 
the following standards:
    (i) Sunrise Wind must submit its draft final report to NMFS (at 
[email protected] and [email protected]) on all 
visual and acoustic monitoring conducted under the LOA within 90 
calendar days of the completion of activities occurring under the LOA. 
A final report must be prepared and submitted within 30 calendar days 
following receipt of any NMFS comments on the draft report. If no 
comments are received from NMFS within 30 calendar days of NMFS' 
receipt of the draft report, the report shall be considered final.
    (ii) [Reserved].
    (9) Sound field verification reports are required from Sunrise Wind 
and must adhere to the following standards:
    (i) Sunrise Wind must provide the initial results of the SFV 
measurements to NMFS in an interim report after each monopile 
foundation installation for the first three monopiles piles, and for 
each UXO/MEC detonation as soon as they are available, but no later 
than 48 hours after each installation or detonation. Sunrise Wind must 
also provide interim reports on any subsequent SFV on foundation piles 
within 48 hours. The interim report must include hammer energies used 
during pile driving or UXO/MEC weight (including donor charge weight), 
peak sound pressure level (SPLpk) and median, mean, maximum, 
and minimum root-mean-square sound pressure level that contains 90 
percent of the acoustic energy (SPLrms) and single strike 
sound exposure level (SELss);
    (ii) The final results of SFV of monopile installations must be 
submitted as soon as possible, but no later than within 90 days 
following completion of impact pile driving of monopiles and UXO/MEC 
detonations. The final report must include, at minimum, the following:
    (A) Peak sound pressure level (SPLpk), root-mean-square 
sound pressure level that contains 90 percent of the acoustic energy 
(SPLrms), single strike sound exposure level 
(SELss), integration time for SPLrms, spectrum, 
and 24-hour cumulative SEL extrapolated from measurements at specified 
distances (e.g., 750 m).
    (1) All these levels must be reported in the form of:
    (i) Median;
    (ii) Mean;
    (iii) Maximum; and
    (iv) Minimum.
    (2) The SEL and SPL power spectral density and one-third octave 
band levels (usually calculated as decidecade band levels) at the 
receiver locations should be reported;
    (B) The sound levels reported must be in median and linear average 
(i.e., average in linear space), and in dB;
    (C) A description of depth and sediment type, as documented in the

[[Page 9102]]

Construction and Operation Plan, at the recording and pile driving 
locations;
    (D) Hammer energies required for pile installation and the number 
of strikes per pile;
    (E) Hydrophone equipment and methods (i.e., recording device, 
bandwidth/sampling rate, distance from the pile where recordings were 
made; depth of recording device(s));
    (F) Description of the SFV PAM 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;
    (G) Description of UXO/MEC, weight, including donor charge weight, 
and why detonation was necessary;
    (H) 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);
    (I) Spatial configuration of the noise attenuation device(s) 
relative to the pile;
    (J) The extents of the Level A harassment and Level B harassment 
zones; and
    (K) 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.
    (10) Situational reports are required from Sunrise Wind and must 
adhere to the following standards:
    (i) If a North Atlantic right whale is observed at any time by PSOs 
or personnel on or in the vicinity of any project vessel, or during 
vessel transit, Sunrise Wind must immediately report sighting 
information to the NMFS North Atlantic Right Whale Sighting Advisory 
System (866) 755-6622, through the WhaleAlert app (https://www.whalealert/org/), and to the U.S. Coast Guard via channel 16, as 
soon as feasible but no longer than 24 hours after the sighting. 
Information reported must include, at a minimum: time of sighting, 
location, and number of North Atlantic right whales observed.
    (ii) When an observation of a marine mammal occurs during vessel 
transit, the following information must be recorded:
    (A) Time, date, and location;
    (B) The vessel's activity, heading, and speed;
    (C) Sea state, water depth, and visibility;
    (D) Marine mammal identification to the best of the observer's 
ability (e.g., North Atlantic right whale, whale, dolphin, seal);
    (E) Initial distance and bearing to marine mammal from vessel and 
closest point of approach; and
    (F) Any avoidance measures taken in response to the marine mammal 
sighting.
    (iii) If a North Atlantic right whale is detected via PAM, the 
date, time, location (i.e., latitude and longitude of recorder) of the 
detection as well as the recording platform that had the detection must 
be reported to [email protected] as soon as feasible, but no 
longer than 24 hours after the detection. Full detection data and 
metadata must be submitted monthly on the 15th of every month for the 
previous month via the webform on the NMFS North Atlantic right whale 
Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates);
    (iv) In the event that the personnel involved in the activities 
defined in Sec.  217.310(a) discover a stranded, entangled, injured, or 
dead marine mammal, Sunrise Wind must immediately report the 
observation to the NMFS Office of Protected Resources (OPR), the NMFS 
Greater Atlantic Stranding Coordinator for the New England/Mid-Atlantic 
area (866-755-6622), and the U.S. Coast Guard within 24 hours. If the 
injury or death was caused by a project activity, Sunrise Wind must 
immediately cease all activities until NMFS OPR is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
LOA. NMFS may impose additional measures to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Sunrise Wind may 
not resume their activities until notified by NMFS. The report must 
include the following information:
    (A) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (B) Species identification (if known) or description of the 
animal(s) involved;
    (C) Condition of the animal(s) (including carcass condition if the 
animal is dead);
    (D) Observed behaviors of the animal(s), if alive;
    (E) If available, photographs or video footage of the animal(s); 
and
    (F) 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 Sunrise Wind Offshore Wind Farm Project, 
Sunrise Wind must immediately report the strike incident to the NMFS 
OPR and the GARFO within and no later than 24 hours. Sunrise Wind must 
immediately cease all activities until NMFS OPR 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. Sunrise Wind may not resume their activities until notified by 
NMFS and additional measures, if any, to ensure compliance with the 
terms of the LOA are implemented. The report must include the following 
information:
    (A) Time, date, and location (latitude/longitude) of the incident;
    (B) Species identification (if known) or description of the 
animal(s) involved;
    (C) Vessel's speed leading up to and during the incident;
    (D) Vessel's course/heading and what operations were being 
conducted (if applicable);
    (E) Status of all sound sources in use;
    (F) 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;
    (G) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    (H) Estimated size and length of animal that was struck;
    (I) Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    (J) If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    (K) 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
    (L) To the extent practicable, photographs or video footage of the 
animal(s).


Sec.  217.316  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, Sunrise Wind must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed November 20, 2023 through November 19, 
2028 of this subpart.
    (c) If an LOA expires prior to the expiration date of these 
regulations, Sunrise Wind may apply for and obtain a renewal of the 
LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and

[[Page 9103]]

monitoring measures required by an LOA, Sunrise Wind must apply for and 
obtain a modification of the LOA as described in Sec.  217.317.
    (e) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under this subpart.
    (g) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.


Sec.  217.317  Modifications of Letter of Authorization.

    (a) An LOA issued under Sec. Sec.  217.312 and 217.316 or Sec.  
217.317 for the activity identified in Sec.  217.310(a) shall be 
modified upon request by the applicant, 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 determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For a LOA modification request by the applicant that include 
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) that do not change the findings 
made for this subpart or result in no more than a minor change in the 
total estimated number of takes (or distribution by species or years), 
NMFS may 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) An LOA issued under Sec. Sec.  217.312 and 217.316 or Sec.  
217.317 for the activities identified in Sec.  217.310(a) may be 
modified by NMFS under the following circumstances:
    (1) Adaptive Management. NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with Sunrise Wind regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in this subpart;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from Sunrise Wind's monitoring from the previous 
year(s);
    (B) Results from other marine mammals and/or sound research or 
studies;
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by this subpart or 
subsequent LOA; and
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies. If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in the LOA issued pursuant to Sec. Sec.  
217.312 and 217.316 or Sec.  217.317, an LOA may be modified without 
prior notice or opportunity for public comment. Notice would be 
published in the Federal Register within 30 days of the action.


Sec. Sec.  217.318-217.319  [Reserved]

[FR Doc. 2023-02497 Filed 2-8-23; 8:45 am]
BILLING CODE 3510-22-P