[Federal Register Volume 88, Number 110 (Thursday, June 8, 2023)]
[Proposed Rules]
[Pages 37606-37702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11814]



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Vol. 88

Thursday,

No. 110

June 8, 2023

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





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

  Federal Register / Vol. 88 , No. 110 / Thursday, June 8, 2023 / 
Proposed Rules  

[[Page 37606]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 230530-0140]
RIN 0648-BL96


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

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

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

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SUMMARY: NMFS has received a request from Park City Wind, LLC (Park 
City Wind) 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 (2025-2030) incidental to 
construction of the New England Wind Project. Park City Wind proposes 
to develop the New England Wind Project in two phases, known as Park 
City Wind (Phase 1) and Commonwealth Wind (Phase 2). Project activities 
that may result in incidental take include pile driving (impact and 
vibratory), drilling, 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. If adopted, 
the proposed regulations would be effective March 27, 2025, through 
March 26, 2030.

DATES: Comments and information must be received no later than July 10, 
2023.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to www.regulations.gov and enter NOAA-NMFS-2023-
0080 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 Park City Wind's Incidental Take Authorization (ITA) 
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 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 New England 
Wind Project within the Bureau of Ocean Energy Management (BOEM) 
Renewable Energy Lease Area OCS-A 0534, the southwest (SW) portion of 
Lease Area OCS-A 0501, and along an export cable corridor to a landfall 
location in Massachusetts. NMFS received a request from Park City Wind 
for 5-year regulations and an LOA that would authorize take, by Level A 
harassment and/or Level B harassment, of 39 species of marine mammals 
incidental to Park City Wind's construction activities. After reviewing 
the request, NMFS is proposing to authorize the take, by harassment 
only, of 38 species, representing 38 stocks. No mortality or serious 
injury is anticipated or proposed for authorization. Please see the 
Estimated Take of Marine Mammals section below for definitions of 
relevant terms.

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.
    As noted above, no serious injury or mortality is anticipated or 
proposed for authorization in this proposed rule. Relevant definitions 
of MMPA statutory and regulatory terms are included below:
     Citizen--individual U.S. citizens or any corporation or 
similar entity if it is organized under the laws of the United States 
or any governmental unit defined in 16 U.S.C. 1362(13) (see 50 CFR 
216.103);
     Take--to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362);
     Incidental taking--an accidental taking. This does not 
mean that the taking is unexpected, but rather it includes those 
takings that are infrequent, unavoidable or accidental (see 50 CFR 
216.103);
     Serious Injury--any injury that will likely result in 
mortality (50 CFR 216.3);
     Level A harassment--any act of pursuit, torment, or 
annoyance which has the potential to injure a marine mammal or marine 
mammal stock in the wild (16 U.S.C. 1362; 50 CFR 216.3); and
     Level B harassment--any act of pursuit, torment, or 
annoyance which

[[Page 37607]]

has the potential to disturb a marine mammal or marine mammal stock in 
the wild by causing disruption of behavioral patterns, including, but 
not limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (16 U.S.C. 1362).
    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 Park City Wind's activities.

Summary of Major Provisions Within the Proposed Action

    The major provisions within this proposed rule are as follows:
     Authorize take of marine mammals by Level A harassment 
and/or Level B harassment.
     No mortality or serious injury of any marine mammal is 
proposed to be authorized;
     Establish a seasonal moratorium on foundation installation 
and UXO/MEC detonations during the months of highest North Atlantic 
right whale (Eubalaena glacialis) presence in the project area (no 
foundation installation or UXO/MEC detonation from January 1-April 30; 
no vibratory pile driving in May and December; impact pile driving and 
drilling activities would not be planned or occur in December unless 
due to unforeseen circumstances and only with NMFS' approval; UXO/MEC 
detonations would not be planned or occur in December or May unless due 
to unforeseen circumstances and only with NMFS' approval);
     Enhanced North Atlantic right whale clearance, shutdown 
and restart procedures May 1 through May 14 and November 1 through 
December 31 (if a seasonally-restricted activity is approved in 
December due to unforeseen circumstances);
     Require both visual and passive acoustic monitoring by 
trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and 
Passive Acoustic Monitoring (PAM; where required) operators before, 
during, and after select activities;
     Require the use of sound attenuation device(s) during all 
foundation installation activities and UXO/MEC detonations to reduce 
noise levels;
     Delay the start of foundation installation and UXO/MEC 
detonations if a North Atlantic right whale is observed at any distance 
by PSOs or acoustically detected within certain distances;
     Delay the start of foundation installation and UXO/MEC 
detonations if other marine mammals are observed entering or within 
their respective clearance zones;
     Shut down pile driving (if feasible) if a North Atlantic 
right whale is observed or if other marine mammals enter their 
respective shut down zones;
     Implement sound field verification requirements during 
impact pile driving and UXO/MEC detonations to measure in situ noise 
levels for comparison against the model results;
     Implement soft-starts for impact pile driving and use the 
least hammer energy possible;
     Require PSOs to continue to monitor for the presence of 
marine mammals for 30 minutes after any impact pile driving occurs;
     Implement ramp-up for HRG site characterization survey 
equipment;
     Increase 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;
     Implement various vessel strike avoidance measures;
     Implement Best Management Practices (BMPs) during 
fisheries monitoring surveys, such as removing gear from the water if 
marine mammals are considered at-risk or are interacting with gear; and
     Require frequent scheduled and situational reporting 
including, but not limited to, information regarding activities 
occurring, marine mammal observations and acoustic detections, and 
sound field verification monitoring results.
    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 the 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, ``New England Wind Draft Environmental Impact Statement (DEIS) for 
Commercial Wind Lease OCS-A0534'', was made available for public 
comment on December 23, 2022 (87 FR 78993), beginning the 60-day 
comment period ending on February 21, 2023. Additionally, BOEM held 
three virtual public hearings on January 27, February 1, and February 
6, 2023.
    Information contained within Park City Wind's incidental take 
authorization (ITA) application and this Federal Register document 
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 notice of 
proposed rulemaking 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).
    Park City 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 at https://www.permits.performance.gov/permitting-project/new-england-wind.

Summary of Request

    On December 1, 2021, Park City Wind, a limited liability company 
registered in the State of Delaware and wholly owned subsidiary of 
Avangrid Renewables, LLC, submitted a request for the promulgation of 
regulations and issuance of an associated 5-year LOA to

[[Page 37608]]

take marine mammals incidental to construction activities associated 
with implementation of the New England Wind Project (hereafter 
``Project'') offshore of Massachusetts in the BOEM Lease Area OCS-A 
0534 and the possible use of their southwest (SW) portion of Lease Area 
OCS-A 0501. The request was for the incidental, but not intentional, 
taking of a small number of 39 marine mammal species (comprising 38 
stocks). Neither Park City Wind nor NMFS expects serious injury or 
mortality to result from the specified activities nor is any proposed 
for authorization.
    Park City Wind is proposing to develop the Project in two phases 
with a maximum of 132 wind turbine generators (WTGs) and electrical 
service platforms (ESP) positions. Two positions may potentially have 
co-located ESPs (i.e., two foundations installed at one grid position); 
hence, the 132 foundations would be installed at 130 positions in the 
lease area. Phase 1 would include 41 to 62 WTGs and 1 or 2 ESPs while 
Phase 2 would include 64 to 88 WTG/ESP positions (up to 3 of those 
positions will be occupied by ESPs). Four or five offshore export 
cables will transmit electricity generated by the WTGs to onshore 
transmission systems in the Town of Barnstable, Massachusetts.
    In response to our questions and comments and following extensive 
information exchange between Park City Wind and NMFS, Park City Wind 
submitted a final revised application on July 13, 2022. NMFS deemed it 
adequate and complete on July 20, 2022. This final application is 
available on NMFS' website at https://www.fisheries.noaa.gov/protected-resource-regulations.
    On August 22, 2022, NMFS published a notice of receipt (NOR) of 
Park City Wind's adequate and complete application in the Federal 
Register (87 FR 51345), requesting public comments and information on 
Park City Wind's request during a 30-day public comment period. During 
the NOR public comment period, NMFS received comment letters from one 
private citizen and one non-governmental organization (ALLCO Renewable 
Energy Limited). NMFS has reviewed all submitted material and has taken 
the material into consideration during the drafting of this proposed 
rule. In January 2023 and again in March 2023, Park City Wind submitted 
memos to NMFS detailing updates and changes to their ITA application 
(``Application Update Report''). These are available on the NMFS 
website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind.
    NMFS previously issued one Incidental Harassment Authorization 
(IHA) to Park City Wind for the taking of marine mammals incidental to 
marine site characterization surveys, using high-resolution geophysical 
(HRG) of the Project Phase 1 in the BOEM Lease Area OCS-A 0534 (87 FR 
44087, July 07, 2022). NMFS has also previously issued another IHA to 
Avangrid Renewables, LLC (Avangrid), owner of Park City Wind, LLC, to 
take small numbers of marine mammals incidental to an HRG survey for a 
BOEM Lease Area (OCS-A 0508) off the coasts of North Carolina and 
Virginia (84 FR 31032, June 28, 2019). To date, Park City Wind and 
Avangrid have complied with all IHA requirements (e.g., mitigation, 
monitoring, and reporting). Applicable monitoring results may be found 
in the Estimated Take of Marine Mammals section. If available, the full 
monitoring reports can be found on NMFS' website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations (87 FR 46921, 
August 1, 2022) to further reduce the likelihood of mortalities and 
serious injuries to endangered right whales from vessel collisions, 
which are a leading cause of the species' decline and a primary factor 
in an ongoing Unusual Mortality Event. 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 on the effective date, NMFS would also notify 
Park City 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 Activities

Overview

    Park City Wind has proposed to construct and operate a wind energy 
facility in State and Federal waters in the Atlantic Ocean in lease 
area OCS-A 0534. This lease area is located within the Massachusetts 
Wind Energy Area (MA WEA) and adjacent to the Rhode Island/
Massachusetts Wind Energy Area (RI/MA WEA). The Project will occupy all 
of Lease Area OCS-A 0534 and potentially a portion of Lease Area OCS-A 
0501 in the event that Vineyard Wind 1 does not develop spare or extra 
positions included in Lease Area OCS-A 0501. If Vineyard Wind 1 does 
not develop spare or extra positions in Lease Area OCS-A 0501, those 
positions would be assigned to Lease Area OCS-A 0534. Accordingly, for 
the purposes of the LOA, Park City Wind has defined the Southern Wind 
Development Area (SWDA) as all of Lease Area OCS-A 0534 and the 
southwest portion of Lease Area OCS-A 0501.
    The Project would consist of several different types of permanent 
offshore infrastructure, including wind turbine generators (WTGs) and 
associated foundations, ESPs, and offshore cabling. Onshore cabling, 
substations, and operations and maintenance (O&M) facilities are also 
planned. The Project is divided into two phases: Park City Wind (Phase 
1) and Commonwealth Wind (Phase 2). Phase 1 would occupy 150-231 km\2\ 
(37,066-57,081 acres) which would include 41-62 WTGs and 1-2 ESPs. 
Phase 1 includes two WTG foundation types: monopiles and piled jackets. 
The ESP(s) will also be supported by a monopile or jacket foundation. 
Strings of WTGs will connect with the ESP(s) via a submarine inter-
array cable transmission system. Two high-voltage alternating current 
(HVAC) offshore export cables, up to 101 km (62.8 mi) in length per 
cable, would be installed within the SWDA. An Offshore Export Cable 
Corridor (OECC) would transmit electricity from the ESP(s) to a 
landfall site.
    Phase 2 depends upon the final footprint of Phase 1. Phase 2 is 
expected to contain 64 to 88 WTGs and 1-3 ESP positions within an area 
ranging from 222-303 km\2\ (54,857-74,873 acres). Phase 2 includes 
three general WTG foundation types: monopiles, jackets (with piles or 
suction buckets), or bottom-frame foundations (with piles or suction 
buckets). Inter-array cables will transmit electricity from the WTGs to

[[Page 37609]]

the ESP(s). The ESP(s) will also be supported by a monopile or jacket 
foundation (with piles or suction buckets). Two or three HVAC offshore 
export cables, each with a maximum length of 116-124 km (63-67 NM) per 
cable, will transmit power from the ESP(s) to shore. All Phase 2 
offshore export cables are planned to use the same OECC as the Phase 1. 
Cables for Phase 1 and Phase 2 will diverge 2-3 km (1-2 mi) from shore 
to unique landfall locations.
    The installation of WTGs and ESPs, would require impact and 
vibratory pile driving and drilling. Work would also include HRG 
vessel-based site characterization surveys using active acoustic 
sources with frequencies of less than 180 kHz and the potential 
detonations of 10 unexploded ordnances or Munitions and Explosives of 
Concern (UXO/MEC) of different charge weights. Additionally, project 
plans include trenching, laying, and burial activities associated with 
the installation of the export cable route from the ESP to the shore-
based landing locations and the inter-array cables between turbines; 
site preparation work (e.g., boulder removal); placement of scour 
protection around foundations; 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 in Barnstable County, Massachusetts. Marine 
mammals exposed to elevated noise levels during impact and vibratory 
pile driving, drilling, detonations of UXOs, or site characterization 
surveys may be taken by Level A harassment and/or Level B harassment 
depending on the specified activity. No serious injury or mortality is 
anticipated or proposed for authorization.

Dates and Duration

    Park City Wind anticipates that the Project 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 March 27, 2025 through March 26, 
2030. The estimated schedule, including dates and duration, for various 
activities is provided in Table 1 (also see Tables 1-3 in Application 
Update Report). 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 the Specific 
Activities subsection.

    Table 1--Estimated Activity Schedule To Construct and Operate the
                                 Project
------------------------------------------------------------------------
        Project activity          Estimated schedule  Estimated duration
------------------------------------------------------------------------
HRG Surveys.....................  Q1 2025-Q4 2029...  Any time of the
                                                       year, up to 25
                                                       days per year.
Scour Protection Pre- or Post-    Q1 2025-Q4 2029...  Any time of the
 Installation.                                         year.
WTG and ESP Foundation            Q2-Q4 2026 and      Up to 8 months per
 Installation, Schedule A.         2027 \1\.           year.
WTG and ESP Foundation            Q2-Q4 2026, 2027,   Up to 8 months per
 Installation, Schedule B.         and 2028 \1\.       year.
Horizontal Directional Drilling   Q4 2025-Q2 2026...  Up to 150 days.
 at Cable Landfall Sites.
UXO/MEC Detonations.............  Q2-Q4 2025 and      Up to 6 days in
                                   2026 \3\.           2025 and 4 days
                                                       in 2026. No more
                                                       than 10 days
                                                       total.
Inter-array Cable Installation..  Q3-Q4 2026 and Q2   Phase 1: 5 months;
                                   2027-Q2 2028.       \2\ Phase 2: 10
                                                       months.\2\
Export Cable Installation and     Q2 2026-Q2 2028...  Phase 1: 8-9
 Termination.                                          months; \1\ Phase
                                                       2: 13-17
                                                       months.\1\
Fishery Monitoring Surveys......  Q1 2025-Q4 2029...  Any time of year.
                                 ---------------------------------------
Turbine Operation...............  Initial turbines operational 2027, all
                                       turbines operational by 2028.
------------------------------------------------------------------------
\1\ Foundation installation pile driving would be limited to May 1-
  December 31, annually; however, pile driving in December will not be
  planned but may occur due to unforeseen circumstances (e.g.,
  unanticipated extended weather delays, unexpected technical
  difficulties) and with NMFS approval.
\2\ The Project is divided into 2 phases: Park City Wind (Phase 1) and
  Commonwealth Wind (Phase 2).
\3\ Park City Wind requested UXO/MEC detonations be allowed Q1 2025-Q4
  2026. We propose to only allow it May-December 2025 and 2026.

Specific Geographic Region

    Park City Wind would construct the Project in Federal waters 
offshore of Massachusetts (Figure 1). The project area is part of the 
Rhode Island/Massachusetts Wind Energy Area (RI-MA WEA). The project 
area covers approximately 101,590 acres (411 km\2\) in Lease Area OCS-A 
0534. The project area is located about 20 miles (32 km) southwest of 
Martha's Vineyard, about 24 miles (39 km) south of Nantucket, and 
adjacent to the southwest boundary of the BOEM-approved Vineyard Wind 1 
energy project (Lease Area OCS-A 0501; 65,296 acres (262 km\2\) 
assigned for potential Project development). Water depths in the 
project area range from 43 to 62 m (141-203 ft) and in the OECC range 
from less than 2 m to 46 m (<7-151 ft). The onshore components of the 
Project will include up to three export cable landfalls in Barnstable 
County, Massachusetts (one for Phase 1 and up to two for Phase 2).
    Park City 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 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

[[Page 37610]]

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 Rhode Island Sound (RIS) 
likely in association with a tidal mixing front.
    The waters in the vicinity of the Project are transitional waters 
positioned between the continental slope and the coastal environments 
of Rhode Island Sound and Nantucket Sound. 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 in the project area, including the results of 
site-specific benthic habitat assessments, can be found within 
Construction and Operations Plan (COP) Volume II-A, Section 5--Results 
Of Biological Surveys and COP Volume II-A Appendices--Appendix II-H 
2016-2020 Benthic Reports.
BILLING CODE 3510-22-P

[[Page 37611]]

[GRAPHIC] [TIFF OMITTED] TP08JN23.000

BILLING CODE 3510-22-C

Detailed Description of Specific Activities

    Below, we provide detailed descriptions of Park City 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.
WTG and ESP Foundation Installation
    Park City Wind proposes to install a maximum of 130 wind turbine 
generator (WTG) and electrical service platform (ESP) positions. Two 
positions may potentially have co-located ESPs (i.e., 1

[[Page 37612]]

WTG and 1 ESP foundation installed at 1 grid position), resulting in 
132 foundations. The WTGs would have a maximum tip height of 357 m 
(1,171 ft) and a maximum penetration depth of 85 m (279 ft). Each 
turbine would be spaced 1 nautical mile (nmi) apart in fixed east-to-
west rows and north-to-south columns to create the 1 nmi by 1 nmi grid 
arrangement. Park City Wind anticipates that the initial WTGs (41-62 
WTGs) would become operational in 2027 after installation is completed 
and all necessary components, such as array cables, ESPs, export cable 
routes, and onshore substations. Park City Wind expects that all 
remaining turbines will be operational by 2028. No more than one 
foundation will be installed at a time (i.e., concurrent/simultaneous 
pile driving of foundations would not occur).
    Phase 1 will include 41 to 62 WTGs and 1 or 2 ESPs for a total of 
42 to 64 foundations. The total number of foundations in Phase 2 
depends upon the final footprint of Phase 1. Phase 2 is expected to 
contain 64 to 88 WTG/ESP foundations (up to 3 of those positions will 
be occupied by ESPs). While only 132 foundations would be permanently 
installed, Park City Wind has accounted for up to 133 pile driving 
events in its take request to account for the instance wherein 
foundation installation began but is unable to be completed due to 
environmental or engineering constraints and the pile is re-driven at 
another position.
    Phase 1 foundation types would be monopiles or jackets while Phase 
2 foundation types include monopiles, jackets, or bottom-frame 
foundations. Jacket foundations require the installation of three to 
four jacket securing piles, known as pin piles. The bottom-frame 
foundation is similar to a conventional jacket foundation, but 
generally has fewer, larger structural tubular members, has a 
triangular space frame, no small-diameter lattice cross-bracing, and a 
single central vertical tubular column. At each foot, the structure 
would be secured to the seafloor using driven piles similar to those 
used by piled jacket foundations or suction buckets. For purposes of 
this analysis, the use of suction buckets to secure bottom-frame 
foundations is not being considered further in this analysis as 
installation of bottom-frame foundations using suction buckets is not 
anticipated to result in noise levels that would cause harassment to 
marine mammals.
    The applicant proposed two construction schedules, A and B. 
Construction schedule A assumes a single 2-year construction scenario. 
Overall, 89 monopile foundations and 2 jacket foundations (8 pin piles) 
would be installed in 2026 over 52 days and 18 monopile foundations and 
24 jacket foundations (96 pin piles) would be installed in 2027 over 35 
days for a total of 87 days of pile driving to install all 133 
foundations. All days would include impact pile driving and a subset 
may include vibratory pile driving and drilling. No more than one 
foundation would be installed at a time (i.e., concurrent/simultaneous 
installation of more than one foundation would not occur). Park City 
Wind anticipates that a maximum of two monopiles or one jacket (up to 
four pin piles) is expected to be installed per day.
    Construction schedule B assumes that all construction would occur 
over a 3-year period (2026-2028). Overall, 55 monopile foundations and 
3 jacket foundations (12 pin piles) would be installed in 2026 over 38 
days, 53 jackets (212 piles) would be installed in 2027 over 53 days, 
and 22 jackets (88 pin piles) would be installed over 22 days in 2028. 
In total, 133 foundations would be installed over 113 days. Similar to 
Schedule A, all days would include impact pile driving and a subset may 
include vibratory pile driving and drilling. Please see Table 2 and 3 
in Park City Wind's March 2023 Application Update Report. Table 2 
provides a summary of Construction Schedule A and B.

                                                 Table 2--Foundation Installation Construction Schedules
                                                                         [Days]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Schedule A                                    Schedule B
                       Foundation type                       -------------------------------------------------------------------------------------------
                                                                  2026         2027         Total         2026         2027         2028        Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monopiles...................................................           89           18          107            55            0            0           55
Jackets.....................................................            2           24           26             3           53           22           78
No. of Days.................................................           52           35           87            38           53           22          113
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Monopiles would be up to 12 m (39.37 ft) or 13 m (42.7 ft) in 
diameter and could be installed in both Phases 1 and 2. Jacket 
foundations require up to four pin piles and each would have a maximum 
diameter of 4 m (13.1 ft) diameter (see Figures 3-6 in the ITA 
application). When accounting for pre-piling preparatory work and post-
piling activities, installation of a single monopile or jacket pile 
will take approximately 6-13 hours. Park City Wind anticipates at least 
1 hour between monopile installations and 30 minutes between jacket pin 
pile installations. Park City Wind anticipates that a maximum of two 
monopiles or one jacket (up to four pin piles) is expected to be 
installed per day. Pile driving activities could occur within the 8-
month period of May through December.
    A WTG monopile foundation typically consists of a single steel 
tubular section with several sections of rolled steel plate welded 
together and secured to the seabed. Secondary structures on each WTG 
monopile foundation will include a boat landing or alternative means of 
safe access, ladders, a crane, and other ancillary components. A 
typical monopile installation sequence begins with the monopiles 
transported directly to the project area 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 5,000 kJ to 6,000 kJ hammer to 
a maximum penetration depth of 40 m (131 ft). Park City Wind estimates 
that a monopile could require up to 6,970 strikes at up to 30.0 blows 
per minute (bpm) to reach full penetration depth. It is expected that 
each monopile installation will last less than 6 hours,

[[Page 37613]]

with most installations anticipated to last between 3-4 hours. Figures 
3-6 in Park City Wind's ITA application provide a conceptual example of 
the WTG support structures (i.e., towers and foundations). WTGs would 
be designed to withstand severe weather conditions anticipated at the 
SWDA (COP Appendix I-E). While major storms, winter nor'easters, and, 
to a lesser extent, hurricanes pass through the SWDA regularly, the 
Project's offshore facilities are designed to withstand such severe 
weather events (COP Volume I).
    Jacket foundations may be used. Once delivered to the SWDA, the 
jacket will be lifted off the transport or installation vessel and 
lowered to the seabed with the correct orientation. The piles will be 
driven to the engineered depth, following the same process described 
above for monopiles. The WTG jacket piles are expected to be pre-piled 
(i.e., the jacket structure will be set on pre-installed piles). Up to 
three ESP jackets are expected to be post-piled (i.e., the jacket is 
placed on the seafloor and piles are subsequently driven through guides 
at the base of each leg). For the ESP post-piled jackets, piling would 
be initiated during daylight hours (no later than 1.5 hours prior to 
civil sunset) and need to continue until all piles are installed due to 
health and safety concerns.
    Jacket foundations would be installed using a 3,500 kJ hammer 
energy pile driving for a 4-m pin pile to reach their maximum 
penetration depth of 50 m (164 ft). There are four pins per jacket 
foundation, Park City Wind estimates that each pin will take up to 
9,805 hammer strikes at up 30.0 bpm to reach full penetration depth 
(Table 1 in the ITA application). Foundation installation would use a 
20-minute soft-start to ensure that the monopile or jacket foundation 
pile remains vertical and to allow any motile marine life to leave the 
area before the pile driving intensity is increased. Jacket foundation 
installation times will vary, but will likely take up to 6 hours per 
pin pile, depending on whether the jacket is pre- or post-piled (Table 
4 ITA application). The bottom-frame foundation (for Phase 2 only) is 
similar to the jacket foundation, with shorter piles and shallower 
penetration. The potential acoustic impact of the bottom-frame 
foundation installation is equivalent to or less than that predicted 
for the jacket foundation. As the design and installation methods for 
bottom-frame foundations would be equivalent to or less than jacket 
foundations, bottom-frame foundations are not carried forward in this 
document.
    During construction of the Project, it may be necessary to start 
pile installation using a vibratory hammer rather than using an impact 
hammer, a technique known as vibratory setting of piles. The vibratory 
method is particularly useful when soft seabed sediments are not 
sufficiently stiff to support the weight of the pile during the initial 
installation, increasing the risk of `pile run' where a pile sinks 
rapidly through seabed sediments. Piles which experience pile run can 
be difficult to recover and pose significant safety risks to the 
personnel and equipment on the construction vessel. The vibratory 
hammer mitigates this risk by forming a hard connection to the pile 
using hydraulic clamps, thereby acting as a lifting/handling tool as 
well as a vibratory hammer. The tool is inserted into the pile on the 
construction vessel deck, and the connection made. The pile is then 
lifted, upended and lowered into position on the seabed using the 
vessel crane. After the pile is lowered into position, vibratory pile 
installation will commence. Vibratory pile installation is a technique 
where piles are driven into soil using a longitudinal vibration motion. 
The vibratory hammer installation method can continue until the pile is 
inserted to a depth that is sufficient to fully support the structure, 
and then the impact hammer can be positioned and operated to complete 
the pile installation. Of the 132 WTG/ESPs, Park City Wind estimates 
approximately 70 total foundations (53 percent) may require vibratory 
hammering before impact hammering. Table 7 and 8 in Park City Wind's 
application provides a breakdown of the number of potential days of 
pile installation, by activity, per month under the maximum design 
scenario for Schedules A and B, respectively.
    Construction schedule A anticipates 20 days of vibratory hammering 
in 2026 and 25 days in 2027 (total 45 days) (Table 2). Construction 
schedule B anticipates 20 days of vibratory hammering in 2026, 25 days 
in 2027, and 9 days in 2028 (total 54 days) (Table 2). Comparisons of 
vibratory pile installation versus impulsive hammer pile installation 
indicate that vibratory pile installation typically produces lower 
amplitude sounds in the marine environment than impact hammer 
installation (Rausche and Beim 2012). The average expected duration of 
vibratory setting is approximately 30 minutes per pile for the Project. 
Due to the small size of the permanent threshold shift (PTS) ranges and 
the mitigation that will be applied during construction, no Level A 
harassment is expected. More information on vibratory pile setting is 
in Section 1.2.2 of the ITA application.
    Drilling is a contingency measure that may be required to remove 
soil and/or boulders from inside the pile in cases of pile refusal 
during installation. A pile refusal can occur if the total frictional 
resistance of the soil becomes too much for the structural integrity of 
the pile and the capability of the impact hammer. Continuing to drive 
in a refused condition can lead to overstress in the pile and potential 
to buckle (tear) the pile material. The use of an offshore drill can 
reduce the frictional resistance by removing the material from inside 
the pile and allowing the continuation of safe pile driving. An 
offshore drill is an equipment piece consisting of a motor and bottom 
hole assembly (BHA). The drill is placed on top of the refused pile 
using the construction vessel crane, and the BHA is lowered down to the 
soil inside the pile. On the bottom face of the BHA is a traditional 
``drill bit,'' which slowly rotates (at 4 or 5 revolutions per minute 
or approximately 0.4 m per hour) and begins to disturb the material 
inside the pile. As the disturbed material mixes with seawater which is 
pumped into the pile, it begins to liquefy. The liquefied material is 
pumped out to a pre-designated location, leaving only muddy seawater 
inside the pile instead of a solid ``soil plug,'' and largely reducing 
the frictional resistance generated by the material inside the pile. 
When enough material has been removed from inside the pile and the 
resistance has reduced sufficiently, the drill is then lifted off the 
pile and recovered to the vessel. The impact hammer is then docked onto 
the pile and impact pile driving commences. It may be necessary to 
remove and replace the drill several times in the driving process to 
achieve sufficiently low frictional resistance to achieve the design 
penetration through impact pile driving. Of the 132 WTG/ESPs, Park City 
Wind estimates 48 foundations (36 percent) may require drilling to 
remove soil and/or boulders from inside the pile that would otherwise 
affect the capability of the impact hammer. Construction schedule A 
anticipates 33 days of drilling in 2026 and 15 days in 2027 (total 48 
days) (Table 2). Construction schedule B anticipates 20 days of 
drilling in 2026, 19 days in 2027, and 9 days in 2028 (total 48 days) 
(Tables 2).
    While pre-piling preparatory work and post-piling activities could 
be ongoing at one foundation position as pile driving is occurring at 
another position, there is no concurrent/

[[Page 37614]]

simultaneous pile driving of foundations planned (see Dates and 
Duration section). Impact pile driving associated with foundation 
installation would be limited to the months of May through December and 
is currently scheduled to be conducted during 2026-2028 (depending 
which construction schedule is done, A or B). Installation of 
foundations is anticipated to result in the take of marine mammals due 
to noise generated during pile driving.
    Park City Wind has proposed to conduct pile driving 24 hours per 
day. Once construction begins, Park City Wind would proceed as rapidly 
as possible, while meeting all required mitigation and monitoring 
measures, to reduce the total duration of construction. 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 Park City 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.
    Installation of the WTG and ESP foundations is anticipated to 
result in the take of marine mammals due to noise generated during pile 
driving and drilling.
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 three vessels working concurrently in 
different sections of the Lease Area and OECC corridor. Park City Wind 
estimates that no more than 3 years will have HRG surveys and each year 
would have at least 6,000 km surveyed. In total, no more than 18,000 km 
may be surveyed across the 5-years with a total of no more than 225 
vessel days within the Lease Area and along the OECC corridor in water 
depths ranging from 1 m (3.6 ft) to 61.9 m (203 ft). Each day that a 
survey vessel covers 80 km (50 miles) of survey trackline is considered 
vessel day. For example, three vessels operating concurrently on the 
same calendar day, covering 80 km each, would be 3 vessel days.
    HRG surveys would be conducted to identify any seabed debris and to 
support micrositing of the WTG and ESP foundations and cable routes. 
Geophysical survey instruments may include side scan sonar, synthetic 
aperture sonar, single and multibeam echosounders, sub-bottom profilers 
(SBP), and magnetometers/gradiometers, some of which are expected to 
result in the take of marine mammals (LOA Section 1.2.5.). Equipment 
may be mounted to the survey vessel or the Project 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 
three vessels concurrently. Up to 80 km of survey lines will be 
surveyed per vessel each survey day at approximately 7.4 km/hour (4 
knots) on a 24-hour basis. HRG surveys are anticipated to operate at 
any time of year for 25 days per year, a maximum of 125 days for the 
maximum of the 3 planned years covered under the 5-years of the LOA. Of 
the HRG equipment types proposed for use, the following sources have 
the potential to result in take of marine mammals:
     Medium penetration SBPs (boomers) to map deeper subsurface 
stratigraphy as needed. A boomer is a broad-band sound source operating 
in the 0.2 kHz to 15 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 0.05 kHz to 3 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 3 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) may 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. In addition, due to the characteristics of 
non-impulsive sources (i.e., Ultra-Short BaseLine (USBL), Innomar, and 
other parametric sub-bottom profilers), take is not anticipated due to 
operating characteristics like very narrow beam width which limit 
acoustic propagation. Therefore, no Level A harassment or B harassment 
can be reasonably expected from the operation of these sources. The 
sources that have the potential to result in harassment to marine 
mammals include boomers and sparkers (Table 3).

                                                 Table 3--Summary of Representative HRG Survey Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Source    Peak source
                                             Representative     Operating  level  (dB   level 0-pk     Pulse     Repetition   Beamwidth    Information
    Equipment type            Name                model         frequency     re 1       (dB re 1    duration    rate  (Hz)   (degrees)       source
                                                                  (kHz)     [mu]Pa m)   [mu]Pa m)      (ms)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Boomer...............  Applied Acoustics   Applied Acoustics       0.2-15         205          212         0.8        \e\ 2         180  CF
                        AA251.              AA251 \a\.
Sparker..............  GeoMarine Geo       SIG ELC 820         \c\ 0.05-3         203          213         3.4        \e\ 1     \d\ 180  CF
                        Spark 2000 (400     Sparker \b\.
                        tip).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Frequency estimated from Figures 14 and 16 in Crocker and Fratantonio (2016). Source levels, beam width, and pulse duration from Table 5 in Crocker
  and Fratantonio (2016) at 300 J.
\b\ SIG ELC 820 has similar operation settings as Geo Spark 2000 (Sect. I.5.1). See Table 9 in Crocker and Fratantonio (2016) source for levels at 5 m
  source depth, 750 J setting.
\c\ Frequency source specifications provided by Vineyard Wind.
\d\ Assumes omnidirectional source.
\e\ Vineyard Wind indicates they will use this repetition rate.


[[Page 37615]]

UXO/MEC Detonations
    Park City Wind anticipates encountering UXO/MECs during Project 
construction. 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.
    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) physical 
UXO/MEC removal (lift and shift), (3) alternative combustive removal 
technique (low order disposal), (4) cutting the UXO/MEC open to 
apportion large ammunition or deactivate fused munitions (cut and 
capture), or (5) 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 and found infeasible would in-situ high-order UXO/MEC 
detonation be pursued. If detonation is necessary, detonation noise 
could result in the take of marine mammals by Level A harassment and 
Level B harassment.
    Park City wind anticipates that up to 10 UXO/MECs may require 
disposal through high-order detonation and that these detonations would 
occur in 2025 and 2026. To better assess the likelihood of encountering 
UXO/MECs during project construction, Park City Wind is conducting 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, Park City Wind assumes that up to 10 UXO/MECs 
charges, of up to 454-kg (1,000 pounds; lbs), which is the largest 
charge that is reasonably expected to be encountered (See Estimated 
Take of Marine Mammals for detailed description of UXO/MEC charge 
weights), may require in-situ detonation. Although it is highly 
unlikely that all 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 10 
different days (i.e., only one detonation would occur per day). Park 
City Wind anticipates up to six detonations could occur in 2025 and 
four in 2026. All detonations would occur during daylight hours only 
and would not occur from December 1 through May 31, annually; however, 
NMFS may approve detonating UXO/MECs on a case-by-case basis in 
December and May.
    NMFS concurs with Park City Wind that Levels A and Level B 
harassment are possible for UXO/MEC detonation activities. Auditory 
injury or behavioral harassment may result from exposure to the sounds 
produced by UXO/MEC detonation; no non-auditory injury is anticipated.
Cable Laying and Installation
    Up to five offshore export cables will transmit electricity 
generated by the WTGs to onshore transmission systems in the Town of 
Barnstable, Massachusetts. Underground onshore export cables, located 
primarily within existing roadway layouts, will connect the landfall 
site(s) to one or two new onshore substations in the Town of 
Barnstable, Massachusetts. Grid interconnection cables will then 
connect the Phase 1 onshore substation to the ISO New England (ISO-NE) 
electric grid at Eversource's existing 345 kilovolt substation in West 
Barnstable. Park City Wind intends to install all Phase 2 offshore 
export cables within the same OECC as the Phase 1 cables but will use 
separate landfall sites than Phase 1 in Barnstable. The offshore export 
cables will likely be transported directly to the Offshore Development 
Area in a cable laying vessel, on an ocean-going barge, or on a heavy 
transport vessel (which may also transport the cable laying vessel 
overseas) and installed by the cable laying vessel upon arrival. Vessel 
types under consideration for cable installation activities are 
presented in the COP Volume 1 Table 4.3-1.
    Cable burial operations will occur both in the SWDA for the inter-
array cables connecting the WTGs to the ESPs and in the Offshore Export 
Cable Corridor (OECC) for the cables carrying power from the ESPs to 
the landfall sites. Construction of the OECC and the inter-array cable 
installation would take place in 2026 through 2028 (Table 2). The 
target depth for cable burial is 1.5 m to 2.5 m (5-8 ft). Therefore, 
the seafloor in the direct path of the inter-array, inter-link, and 
offshore export cables within the SWDA will be disturbed from the 
surface to a depth of 1.5 to 2.5 m (5-8 ft). Where sufficient cable 
burial depths cannot be achieved, cable protection would be used. Cable 
laying, cable installation, and cable burial activities planned to 
occur during the construction of the project may include the following: 
jetting (e.g., jet plow or jet trenching); vertical injection; 
leveling; mechanical cutting; plowing (with or without jet-assistance); 
pre-trenching; boulder removal; and controlled flow excavation. During 
construction related activities, including cable laying and 
construction material delivery, dynamic positioning (DP) thrusters may 
be used to maneuver and maintain station. No blasting is proposed for 
cable installation.
    Bottom habitat may also be permanently altered to hard bottom 
substrate through the installation of cable protection (as described in 
Sections 3.2.1.5.4 and 4.2.1.5.4 of BOEM COP Volume I). Potential cable 
protection methods include: rock placement on top of the cables (6.4 cm 
in diameter or larger); Gabion rock bags on top of the cables; concrete 
mattresses; or half-shell pipes or similar (only for cable crossings or 
where the cable is laid on the seafloor). Cable protection will be up 
to 9 m (30 ft) wide. The offshore export cables will likely be 
transported directly to the Offshore Development Area in a cable laying 
vessel, on an ocean-going barge, or on a heavy transport vessel (which 
may also transport the cable laying vessel overseas) and installed by 
the cable laying vessel upon arrival. Phase 1 will consist of two 
offshore export cables with a maximum total length of ~202 km (~109 
nmi). Phase 2 will consist of two or three offshore export cables with 
a maximum total length (assuming three cables) of 356 km (~192 nmi). 
The ends of the offshore export cables will likely be protected using 
protection conduits put in place at the approach to the ESP 
foundation(s). Installation of an offshore export cable is anticipated 
to last approximately 9 months for Phase 1 and approximately 13.5 
months for Phase 2. Cable installation for each Phase may be continuous 
and take up to 2 years. The estimated installation time frame for the 
inter-array cables is over a period of approximately 4-5 months for 
Phase 1 and 9 months for Phase 2.
    The ends of the offshore export cables will likely be protected 
using protection conduits put in place at the approach to the ESP 
foundation(s) (see COP Volume I Figure 3.2-8). This cable entry 
protection system consists of different components of composite 
material and/or cast-iron half-shells with suitable corrosion 
protection, which protect the cables from fatigue and mechanical loads 
as they transition above the seabed and enter the foundation.

[[Page 37616]]

Although a large majority of the cable entry protection system will 
likely lie on top of the monopile scour protection (if used), it will 
likely extend a short distance beyond the edge of the scour protection. 
Additional cable protection may be placed on top of the cable entry 
protection system (within the footprint of the scour protection) to 
secure the cable entry protection system in place and limit movement of 
the cable, which can damage the cable (for specific details see COP 
Volume I section 3.2.1.5.4).
    For Phases 1 and 2, 66 to 132 kilovolt (kV) inter-array cables will 
connect ``strings'' of WTGs to an ESP. The maximum anticipated total 
length of the Phase 1 inter-array cables is approximately 225 km (121 
nmi) and the maximum anticipated total length of the inter-link cable 
is approximately 20 km (11 nmi). The maximum anticipated total length 
of the Phase 2 inter-array cables is approximately 325 km (175 nmi) and 
the maximum anticipated total length of the inter-link cable is 
approximately ~60 km (~32 nmi). The target burial depth of the offshore 
export cables will be at least 1.5-2.5 m (5-8 ft) along their entire 
length. Like the offshore export cables, all inter-array cables and 
inter-link cables will likely be protected with cable entry protection 
systems at the approach to the WTG and ESP foundations.
    Some dredging of the upper portions of sand waves may be required 
prior to cable laying to achieve sufficient burial depth below the 
stable sea bottom; large boulders may also need to be relocated. 
Dredging may be used to remove the upper portions of sand waves within 
the OECC and will be limited only to the extent required to achieve 
adequate cable burial depth during cable installation. Dredging could 
be accomplished by a trailing suction hopper dredge (TSHD) or 
controlled flow excavation.
    The amount of habitat disturbance from the use of jack-up and/or 
anchored vessels, cable installation, and metocean buoy anchors would 
be approximately 4.08 km\2\ (1.58 miles\2\). The total area of 
alteration within the SWDA due to foundation and scour protection 
installation, jack-up and/or anchored vessel use, inter-array and 
inter-link cable installation, potential cable protection (if 
required), and metocean buoy anchors is 5.19 km\2\, (2.00 miles\2\) 
which is 1.1 percent of the maximum size of the SWDA. Metocean buoys 
are small buoys that collect various ocean data. As the noise levels 
generated from cable laying and installation work are low, the 
potential for take of marine mammals to result is discountable. Park 
City 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.
Site Preparation
    Seabed preparation may be required prior to foundation 
installation, scour protection installation, or cable-laying (see 
Section 3.3.1.2 and 4.3.1.2 of the COP Volume I). This could include 
the removal of large obstructions and/or leveling of the seabed. Large 
boulders along the route may need to be relocated prior to cable 
installation. Some dredging of the upper portions of sand waves may 
also be required prior to cable laying to achieve sufficient burial 
depth below the stable sea bottom. However, depending on bottom 
conditions, water depth, and contractor preferences, other specialty 
techniques may be used in certain areas to ensure sufficient burial 
depth. 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 pre- or post-installation and will 
involve a rock dumping vessel placing scour using fall-pipes, side 
dumping, and/or placement using a crane/bucket at each foundation 
location (more details can be found in Park City Wind's COP Volume 1 
Section 3.3.1.2).
    For Phases 1 and 2, a pre-lay grapnel run and pre-lay survey are 
expected to be performed to clear obstructions, such as abandoned 
fishing gear and other marine debris, and inspect the route prior to 
cable laying. A specialized vessel will tow a grapnel rig that hooks 
and recovers obstructions, such as fishing gear, ropes, and wires from 
the seafloor. Boulder clearance may be required in targeted locations 
to clear boulders along the OECC, inter-array cable (IAC) routes, and/
or foundations prior to installation.
    Boulder removal would occur prior to installation and would be 
completed by a support vessel based. It is currently anticipated that 
boulders larger than approximately 0.2-0.3 m (0.7-1 ft) will be avoided 
or relocated outside of the final installation corridor to create an 
installation corridor wide enough to allow the installation tool to 
proceed unobstructed along the seafloor. If there are boulders along 
the final route that cannot be moved, a reasonable buffer of up to 5 m 
(16 ft) could be utilized. Further details on boulder relocation can be 
found in COP Volume 1 Section 3.3.1.3.2.
    Dredging would also occur and be limited to the extent required to 
achieve adequate cable burial depth during cable installation. Where 
dredging is necessary, Park City Wind conservatively assumed that the 
dredge corridor would typically be 15 m (50 ft) wide at the bottom (to 
allow for equipment maneuverability) with approximately 1:3 sideslopes 
for each cable. However, the depth of dredging will vary with the 
height of sand waves and the dimensions of the sideslopes will likewise 
vary with the depth of dredging and sediment conditions. This dredge 
corridor includes up to 1 m (3.3 ft) wide cable installation trench and 
up to 3 m (10 ft) wide temporary disturbance zone from the tracks or 
skids of the cable installation equipment. The average dredge depth is 
approximately 0.5 m (1.6 ft) and may range up to 5.25 m (17 ft) in 
localized areas. The total vertical disturbance within sand waves is up 
to 8 m (26 ft), which includes dredging and cable installation.
    Two installation methods may be used to complete sand leveling 
including Trailing Suction Hopper Dredging (TSHD) and controlled flow 
excavation (CFE). A TSHD can be used in sand waves of most sizes, 
whereas the controlled flow excavation technique is most likely to be 
used in areas where sand waves are less than 2 m (6.6 ft) high. A TSHD 
vessel contains one or more drag arms that extend from the vessel, rest 
on the seafloor, and suction up sediments. Any sediment removed would 
be deposited in the dredged material within the OECC. Bottom dumping of 
dredged material would only occur within sand waves. CFE is a 
contactless dredging tool, providing a method of clearing loose 
sediment below submarine cables, enabling burial. 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. Further details on dredging and sand level can be 
found in COP Volume I 3.3.1.3.5.
    NMFS does not expect site preparation work, including boulder 
removal and sand leveling (i.e., dredging), 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 project. Sound

[[Page 37617]]

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 those vessels would be comparable to or less than the 
noise produced by DP vessels, so impacts are also expected to be 
similar. Additionally, boulder clearance is a discreet action occurring 
over a short duration resulting in short term direct effects and sound 
produced by boulder clearance 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 Park Wind 
did not request, and NMFS does not propose to authorize, any Level A 
harassment or Level B harassment takes associated with seafloor 
preparation work and these activities are not analyzed further in this 
document.
Vessel Operation
    Park City Wind will utilize various types of vessels over the 
course of the 5-year proposed regulations. Park City Wind has 
identified several existing port facilities located in Massachusetts, 
Rhode Island, Connecticut, New York, and/or New Jersey to support 
offshore construction, assembly and fabrication, crew transfer and 
logistics, and other operational activities. In addition, some 
components, materials, and vessels could come from Canadian and 
European ports. A variety of vessels would be used throughout the 
construction activities. These range from crew transportation vessels, 
tugboats, jack-up vessels, cargo ships, and various support vessels 
(Table 4). Details on the vessels, related work, operational speeds, 
and general trip behavior can be found in Table 2 of the ITA 
application and Table 3.3-1 in the COP Volume 1. In addition to 
vessels, helicopters may be used for crew transfer and fast response 
visual inspections and repair activities during both construction and 
operations. It is not possible at this stage of the project to quantify 
the expected use of helicopters and any potential reduction in the 
number of vessel trips.
    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. Park City Wind did not 
request, and NMFS does not propose to authorize, any take associated 
with vessel activity.
    During construction and operation, crew transfer vessels (CTVs) and 
a service operation vessel (SOV) will be used to conduct maintenance 
activities. Although less likely, if an SOV is not used, several CTVs 
and helicopters would be used to frequently transport crew to and from 
the offshore facilities. Park City Wind has also included potential for 
helicopters to be used when rough weather limits or precludes the use 
of CTVs and during fast response visual inspections and repair 
activities during both construction and operations (COP Volume 1 
Sections 3.3.1.12.1 and 4.3.1.12.1). The total vessels expected for use 
during the Project are in Table 4; more details can be found in Table 2 
of the ITA application.
    Assuming the maximum design scenario for each Phase individually, 
~3,200 total vessel round trips (an average of approximately six round 
trips per day) are expected to occur during offshore construction of 
Phase 1 and ~3,800 total vessel round trips (an average of 
approximately seven round trips per day) are expected to occur during 
offshore construction of Phase 2 (For the purposes of estimating vessel 
trips, tugboats and barges are considered one vessel). Due to the range 
of buildout scenarios for Phases 1 and 2, Park City Wind expects the 
total number of vessel trips from both Phases of New England Wind 
combined to be less than the sum of vessel trips estimated for each 
Phase independently (section 1.1.2 ITA application). Park City Wind 
estimates that, between the 5 major port areas they intend to use, they 
expect an average of 15 round trips per day and 443 round trips per 
month during peak construction (Table 1 ITA application). Throughout 
the entire construction period, they expect an average of 8 round trips 
per day and 215 round trips per month (Table 1 ITA application).

 Table 4--Type and Number of Vessels Anticipated During Construction and
                               Operations
------------------------------------------------------------------------
                                                           Max number of
         Project period                Vessel types           vessels
------------------------------------------------------------------------
All Foundation Installation....  Transport,                           20
                                  Installation, and
                                  Support.
All Foundation Installation....  Crew Transfer..........               3
All Foundation Installation....  Environmental                         8
                                  Monitoring and
                                  Mitigation.
WTG Installation...............  Transport,                           21
                                  Installation, and
                                  Support.
WTG Installation...............  Crew Transfer Vessel...               3
Inter-array Cable Installation.  Transport,                            7
                                  Installation, and
                                  Support.
Inter-array Cable Installation.  Crew Transfer Vessel...               2
ESP Installation...............  Transport,                            9
                                  Installation, and
                                  Support.
ESP Installation...............  Crew Transfer Vessel...               1
Offshore Export Cable            Transport,                           13
 Installation.                    Installation, and
                                  Support.
Offshore Export Cable            Crew Transfer Vessel...               1
 Installation.
All Other Construction           Crew Transfer Vessel...               4
 Activities.
All Other Construction           Transport, Survey, and                4
 Activities.                      Support.
------------------------------------------------------------------------

    NMFS is proposing to require extensive vessel strike avoidance 
measures that would avoid vessel strikes from occurring (see Proposed 
Mitigation section). Park City Wind has not requested, and NMFS is not

[[Page 37618]]

proposing to authorize, take from vessel strikes.
Fisheries and Benthic Monitoring
    Fisheries and benthic monitoring surveys are being 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). Park City Wind 
would conduct trawl net sampling, video surveillance (drop camera), 
plankton (Neuston) net, ventless trap, and tagging surveys. 
Specifically, Park City Wind would conduct seasonal trawl surveys 
following the Northeast Area Monitoring and Assessment Program (NEAMAP) 
survey protocol to sample fish and invertebrates in the SWDA and 
control area. The surveys would be comprised of 200 tows per year 
conducted for 20 minutes at vessel speed of 3.0 knots. The ventless 
trap surveys would follow Massachusetts and Rhode Island Division of 
Marine Fisheries protocol to sample lobster, black sea bass, and Jonah 
crab. Surveys would be conducted twice per month from May to December 
in 30 stations across the SWDA and control areas with 6 lobster traps 
and 1 fish pot at each station. Because the drop camera, tagging 
efforts, and Neuston nets do not have components with which marine 
mammals are likely to interact (i.e., become entangled in or hooked 
by), these activities are not anticipated to result in take of marine 
mammals and will not be discussed further. Only trap and trawl surveys 
have the potential to result in harassment to marine mammals. However, 
Park City 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, Park City Wind does not 
anticipate, and NMFS is not proposing to authorize, take of marine 
mammals incidental to research trap and trawl surveys. Given no take is 
anticipated from these surveys, impacts from fishery surveys will not 
be discussed further in this document (with the exception of the 
description of measures in the Proposed Mitigation section).

Description of Marine Mammals in the Area of Specified Activities

    Thirty-eight marine mammal species under NMFS' jurisdiction have 
geographic ranges within the western North Atlantic OCS (Hayes et al., 
2022). Park City Wind requested take of all 38 species (comprising 38 
stocks) of marine mammals. The majority of takes are requested for only 
17 species; the remaining 22 stocks are considered rare in the project 
area and Park City Wind is requested a limited amount of take for those 
species (e.g., one group size). Sections 3 and 4 of Park City Wind's 
ITA application summarize available information regarding status and 
trends, distribution and habitat preferences, and behavior and life 
history of the potentially affected species. NMFS fully considered all 
of this information, and we refer the reader to these descriptions in 
the application 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 5 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 5 are the most recent available at the time of publication and, 
unless noted otherwise, use NMFS' 2022 SARs (Hayes et al., 2023) 
available online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.

                              Table 5--Marine Mammal Species That May Occur in the Project Area and Be Taken, by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               Annual
                                                                                             ESA/ MMPA     Stock abundance (CV,              mortalities
           Common name                     Scientific name                  Stock             status;        Nmin, most recent      PBR      or serious
                                                                                          strategic (Y/N)    abundance survey)              injuries (M/
                                                                                                \1\                 \2\                        SI) \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale...  Eubalaena glacialis............  Western Atlantic....  E,D,Y            338 (0; 332; 2020)..        0.7           8.1
Family Balaenopteridae
 (rorquals):
    Blue whale...................  Balaenoptera musculus..........  Western North         E,D,Y            UNK (UNK, 402, 2019)        0.8             0
                                                                     Atlantic.
    Fin whale....................  Balaenoptera physalus..........  Western North         E,D,Y            6,802 (0.24; 5,573;          11           1.8
                                                                     Atlantic.                              2016).
    Humpback whale...............  Megaptera novaeangliae.........  Gulf of Maine.......  -,-,Y            1,396 (0; 1,380;             22         12.15
                                                                                                            2016).
    Minke whale..................  Balaenoptera acutorostrata.....  Canadian Eastern      -,-,N            21,968 (0.31;               170          10.6
                                                                     Coastal.                               17,002; 2016).
    Sei whale....................  Balaenoptera borealis..........  Nova Scotia.........  E,D,Y            6,292 (1.02; 3,098;         6.2           0.8
                                                                                                            2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 37619]]

 
                                            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 Kogiidae:
    Dwarf sperm whale \4\........  Kogia sima.....................  Western North         -,-,N            7,750 (0.38; 5,689;          46             0
                                                                     Atlantic.                              2016).
    Pygmy sperm whale \4\........  Kogia breviceps................  Western North         -,-,N            7,750 (0.38; 5,689;          46             0
                                                                     Atlantic.                              2016).
Family Ziphiidae:
    Cuvier's beaked whale........  Ziphius cavirostris............  Western North         -,-,N            5,744 (0.36, 4,282,          43           0.2
                                                                     Atlantic.                              2016).
    Blainville's beaked whale....  Mesoplodon densirostris........  Western North         -,-,N            10,107 (0.27, 8,085,         81       \5\ 0.2
                                                                     Atlantic.                              2016).
    Gervais' beaked whale........  Mesoplodon europaeus...........  Western North         -,-,N            5,744 (0.36, 4,282,          81         \5\ 0
                                                                     Atlantic.                              2016).
    Sowerby's beaked whale.......  Mesoplodon bidens..............  Western North         -,-,N            10,107 (0.27, 8,085,         81         \5\ 0
                                                                     Atlantic.                              2016).
    True's beaked whale..........  Mesoplodon mirus...............  Western North         -,-,N            10,107 (0.27, 8,085,         81         \5\ 0
                                                                     Atlantic.                              2016).
    Northern bottlenose whale....  Hyperoodon ampullatus..........  Western North         -,-,N            UNK (UNK, UNK, 2016)        UNK             0
                                                                     Atlantic.
Family Delphinidae:
    Atlantic spotted dolphin.....  Stenella frontalis.............  Western North         -,-,N            39,921 (0.27;               320             0
                                                                     Atlantic.                              32,032; 2016).
    Atlantic white-sided dolphin.  Lagenorhynchus acutus..........  Western North         -,-,N            93,233 (0.71;               544            27
                                                                     Atlantic.                              54,433; 2016).
    Bottlenose dolphin...........  Tursiops truncatus.............  Western North         -,-,N            62,851 (0.23;               519            28
                                                                     Atlantic--Offshore.                    51,914; 2016).
    Clymene dolphin..............  Stenella clymene...............  Western North         -,-,N            4,237 (1.03; 2,071;          21             0
                                                                     Atlantic.                              2016).
    Common dolphin...............  Delphinus delphis..............  Western North         -,-,N            172,897 (0.21;            1,452           390
                                                                     Atlantic.                              145,216; 2016).
    Long-finned pilot whale......  Globicephala melas.............  Western North         -,-,N            39,215 (0.3; 30,627;        306            29
                                                                     Atlantic.                              2016).
    Short-finned pilot whale.....  Globicephala macrorhynchus.....  Western North         -,-,Y            28,924 (0.24,               236           136
                                                                     Atlantic.                              23,637, See SAR).
    Risso's dolphin..............  Grampus griseus................  Western North         -,-,N            35,215 (0.19;               301            34
                                                                     Atlantic.                              30,051; 2016).
    False killer whale...........  Pseudorca crassidens...........  Western North         -,-,N            1,791 (0.56, 1,154,          12             0
                                                                     Atlantic.                              2016).
    Fraser's dolphin.............  Lagenodelphis hosei............  Western North         -,-,N            UNK (UNK, UNK, 2016)        UNK             0
                                                                     Atlantic.
    Killer whale.................  Orcinus orca...................  Western North         -,-,N            UNK (UNK, UNK, 2016)        UNK             0
                                                                     Atlantic.
    Melon-headed whale...........  Peponocephala electra..........  Western North         -,-,N            UNK (UNK, UNK, 2016)        UNK             0
                                                                     Atlantic.
    Pantropical spotted dolphin..  Stenella attenuata.............  Western North         -,D,N            6,593 (0.52, 4,367,          44             0
                                                                     Atlantic.                              2016).
    Pygmy killer whale...........  Feresa attenuata...............  Gulf of Maine/Bay of  -,-,N            UNK (UNK, UNK, 2016)        UNK             0
                                                                     Fundy.
    Rough-toothed dolphin........  Steno bredanensis..............  Western North         -,-,N            136 (1.0, 67, 2016).        0.7             0
                                                                     Atlantic.
    Spinner dolphin..............  Stenella longirostris..........  Western North         -,D,N            4,102 (0.99, 2,045,          20             0
                                                                     Atlantic.                              2016).
    Striped dolphin..............  Halichoerus grypus.............  Western North         -,-,N            67,036 (0.29;               529             0
                                                                     Atlantic.                              52,939; 2016).
    White-beaked dolphin.........  Phoca vitulina.................  Western North         -,-,N            536,016 (0.31;            4,153             0
                                                                     Atlantic.                              415,344; 2016).
Family Phocoenidae (porpoises):
    Harbor porpoise..............  Phocoena phocoena..............  Gulf of Maine/Bay of  -,-,N            95,543 (0.31;               851            16
                                                                     Fundy.                                 74,034; 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \6\................  Halichoerus grypus.............  Western North         -,-,N            27,300 (0.22;             1,389         4,453
                                                                     Atlantic.                              22,785; 2016).
    Harbor seal..................  Phoca vitulina.................  Western North         -,-,N            61,336 (0.08;             1,729           339
                                                                     Atlantic.                              57,637; 2018).
    Harp seal....................  Pagophilus groenlandicus.......  Western North         -,-,N            7.6M (UNK; 7.1M;        426,000       178,573
                                                                     Atlantic.                              2019).
    Hooded seal..................  Cystophora cristata............  Western North         -,-,N            UNK (UNK, UNK, N/A).        UNK         1,680
                                                                     Atlantic.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 can be found online at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. 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). (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy
  (2022)).
\4\ Accounts for both Kogia species.
\5\ Accounts for all Mesoplodon species.
\6\ 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.

    In addition to the species listed in Table 5, 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

[[Page 37620]]

and are not considered further in this document.
    Park City Wind also requested take for beluga whales 
(Delphinapterus leucas), however, beluga whales are so rare in the 
project area that there is no beluga whale stock designated along the 
U.S. Eastern Seaboard as it is a more northerly species. In 2014, a 
beluga whale was observed in Taunton River, Massachusetts, however, 
experts opined that this whale was far from its natural habitat (which 
include arctic and subarctic waters) (Swaintek, 2014). It is not 
anticipated that beluga whales would occur in the project area; 
therefore, beluga whales 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 Project is 
contained within the MA WEA and adjacent to 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). As indicated above, 17 species 
and stocks in Table 5 are known to temporally and spatially co-occur 
with the activity. Additionally, 22 stocks are rare in the project 
area. However, Park City Wind has conservatively requested a limited 
amount of take to ensure MMPA compliance in the unlikely event that one 
or more of these rare species are encountered during project activities 
that may result in take (Table 32). 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 Park City 
Wind's ITA application (https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-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 (https://www.fisheries.noaa.gov/resource/map/national-esa-critical-habitat-mapper).
    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 May 2023, five UMEs are active. Four of these UMEs are occurring 
along the U.S. Atlantic coast for various marine mammal species. Of 
these, the most relevant to the project area are the 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/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. Blue whales have been included due to 
their ESA-listing and not due to any UME or area 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 LaBrecque et al., 2015) 
that overlap spatially (or are adjacent) with the project area are 
addressed in the species sections below.

North Atlantic Right Whales

    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., 2022; Reed et al., 
2022). The Western Atlantic stock is considered depleted under the MMPA 
(Hayes et al., 2022). There is a recovery plan (NMFS, 2005) for the 
North Atlantic right whale, and NMFS completed 5-year reviews of the 
species in 2012, 2017, and 2022 which concluded no change to the 
listing status is warranted.
    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 
23.5 percent 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 70 
reproductively active females remain in the population.
    Critical habitat for North Atlantic right whales is not present in 
the project area. However, 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.,

[[Page 37621]]

2015). While the project does not overlap any North Atlantic right 
whale feeding BIAs, it does spatially overlap a more recently described 
important feeding area. North Atlantic right whales have recently been 
observed feeding year-round in the region south of Martha's Vineyard 
and Nantucket with larger numbers in this area in the winter making it 
the only known winter foraging habitat for the species (Leiter et al., 
2017; Quintana-Rizzo et al., 2021).
    NMFS' regulations at 50 CFR 224.105 designated Seasonal Management 
Areas (SMAs) for North Atlantic right whales in 2008 (73 FR 60173, 
October 10, 2008). SMAs were developed to reduce the threat of 
collisions between ships and North Atlantic right whales around their 
migratory route and calving grounds. The Block Island SMA is near the 
proposed project area; this 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). Due to the current status of North Atlantic 
right whales and the spatial proximity 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.
    North Atlantic right whale presence in the project area is 
predominately seasonal; however, year-round occurrence is documented. 
Abundance is highest in winter with irregular occurrence during summer 
months and similar occurrence rates in spring and fall (O'Brien et al., 
2022; Quintana-Rizzo et al., 2021; Estabrook et al., 2022). 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 
(Quintana-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 (75 
percent array-days, n = 193), and summer had the lowest presence (10 
percent array-days, n = 27). Spring and autumn were similar, where 45 
percent (n = 117) and 51 percent (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 broad-scale 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.
    In late fall (i.e., November), a portion of the right whale 
population (including pregnant females) typically departs the feeding 
grounds in the North Atlantic, moves south along the migratory corridor 
BIA, including through the project area, to 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 (Gowan et al., 2019).
    Southern New England waters are a migratory corridor in the spring 
and early winter and a primary feeding habitat for North Atlantic right 
whales during late winter through spring. 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; 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; Quintana-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 (Stone et 
al., 2017; Mayo et al., 2018; Ganley et al., 2019; Record et al., 2019; 
Meyer-Gutbrod et al., 2021). The SWDA and OECC are south and east of 
Martha's Vineyard and south and west of Nantucket Islands.
    Since 2017, 98 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 
May 17, 2023, there have been 36 confirmed mortalities (dead stranded 
or floaters) and 33 seriously injured free-swimming whales for a total 
of 69 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 98. 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 https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.

Humpback Whales

    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 four DPSs as endangered and one DPS as 
threatened (81 FR 62259, September 8, 2016). The remaining nine DPSs 
were

[[Page 37622]]

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 confidence interval (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 (LaBrecque 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 May 17, 2023, 191 humpback whales have stranded as part of this 
UME. Partial or full necropsy examinations have been conducted on 
approximately 90 of the known cases. Of the whales examined, about 40 
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. More information is available at 
https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.

Fin Whales

    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 
indicate that this species is present in the RI/MA & MA WEAs during all 
months of the year, although less so in summer months (Morano et al., 
2012; Muirhead et al., 2018; Davis et al., 2020).
    New England waters represent a major feeding ground for fin whales. 
The project area partially overlaps the 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 Whales

    Minke whales are common and widely distributed throughout the U.S. 
Atlantic EEZ (Cetacean and Turtle Assessment Program (CETAP), 1982; 
Hayes et al., 2022), although their distribution has a strong seasonal 
component. 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 (LaBrecque 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 may exist to the east of the 
proposed project area as minke whales may track warmer waters along the 
continental shelf while migrating (Risch et al., 2014).
    From 2017 through 2022, elevated minke whale mortalities detected 
along the Atlantic coast from Maine through South Carolina resulted in 
the declaration of a UME. As of April 14, 2023, a total of 142 minke 
whale mortalities have occurred 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.

Sei Whale

    The Nova Scotia stock of sei whales can be found in deeper waters 
of the continental shelf edge of the eastern United States and 
northeastward to

[[Page 37623]]

south of Newfoundland (Mitchell, 1975; Hain et al., 1985; Hayes et al., 
2022). During spring and summer, the stock is mainly concentrated in 
northern feeding areas, including the Scotian Shelf (Mitchell and 
Chapman, 1977), the Gulf of Maine, Georges Bank, the Northeast Channel, 
and south of Nantucket (CETAP, 1982; Kraus et al., 2016; Roberts et 
al., 2016; Palka et al., 2017; Cholewiak et al., 2018; Hayes et al., 
2022). Sei whales have been detected acoustically along the Atlantic 
Continental Shelf and Slope from south of Cape Hatteras, North Carolina 
to the Davis Strait, with acoustic occurrence increasing in the mid-
Atlantic region since 2010 (Davis et al., 2020).
    Although their migratory movements are not well understood, sei 
whales are believed to migrate north in June and July to feeding areas 
and south in September and October to breeding areas (Mitchell, 1975; 
CETAP, 1982; Davis et al., 2020). Although sei whales generally occur 
offshore, individuals may also move into shallower, more inshore waters 
(Payne et al., 1990; Halpin et al., 2009; Hayes et al., 2022). A sei 
whale feeding BIA occurs in New England waters from May through 
November (LaBrecque et al., 2015). This BIA is located nearby but not 
within the project area and is not expected to be impacted by the 
Project activities.

Blue Whales

    Blue whales are included within this section due to their ESA-
listing status and not to any active BIA or UME in the project area. 
Blue whales are widely distributed throughout the world's oceans and 
are an ESA-listed species throughout their range. Their Western North 
Atlantic Stock occurs in the western North Atlantic and generally 
ranges from the Arctic to at least mid-latitude waters. Blue whales are 
most frequently sighted in more northerly waters off eastern Canada, 
with the majority of records from the Gulf of St. Lawrence by 
Newfoundland, Canada (Hayes et al., 2019). They often are found near 
the continental shelf edge where upwelling produces concentrations of 
krill, their main prey species (Yochem and Leatherwood, 1985; Fiedler 
et al., 1998; Gill et al., 2011). The blue whale is not common in the 
project area. A 2008 study detected blue whale calls in offshore areas 
of the New York Bight on 28 out of 258 days of recordings (11 percent 
of the days), mostly during winter (Muirhead et al., 2018). Kraus et 
al. (2016) conducted aerial and acoustic surveys between 2011-2015 in 
the MA and RI/MA WEAs and surrounding areas. Blue whales were not 
visually observed and were only sparsely acoustically detected in the 
MA and RI/MA WEAs during winter; the acoustic detection could have been 
due to very distant vocalizations. These data suggest that blue whales 
are rarely, if at all, present in the MA and RI/MA WEAs (Kraus et al., 
2016). Surveys conducted in 2018-2020, did not result in any sightings 
of blue whales in MA and RI/MA WEAs (O'Brien et al., 2021a; O'Brien et 
al., 2021b). However, Park City Wind has requested a small amount of 
take for blue whales on the minimal chance of encounter.
    Much is not known about the blue whale populations, the last 
minimum population abundance was estimated at 402 (Hayes et al., 2023). 
There are insufficient data to determine population trends for blue 
whales. The total level of human caused mortality and serious injury is 
unknown, but it is believed to be insignificant and approaching a zero 
mortality and serious injury rate (Hayes et al., 2019). There are no 
blue whale BIAs or ESA-protected critical habitat identified in the 
project area or along the U.S. Eastern Seaboard. There is no UME for 
blue whales. More information is available at https://www.fisheries.noaa.gov/species/blue-whale.

Pinnipeds

    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 
project area, the populations affected by the UME are the same as those 
potentially affected by the project. Information on this UME is 
available online at https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.
    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 https://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 6.

[[Page 37624]]



                  Table 6--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

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

Potential Effects of the Specified Activities on 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 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 the Specified Activities 
section). Here, the potential effects of sound on marine mammals are 
discussed.
    Park City Wind has requested, and NMFS proposes to authorize, the 
take of marine mammals incidental to the construction activities 
associated with the project area. In their application and Application 
Update Report, Park City Wind presented their analyses of potential 
impacts to marine mammals from the acoustic and explosive sources. NMFS 
both carefully reviewed the information provided by Park City Wind, as 
well as independently reviewed applicable scientific research and 
literature and other information to evaluate the potential effects of 
the Project's activities on marine mammals.
    The proposed activities would result in the construction and 
placement of up to 132 permanent foundations to support WTGs and ESPs 
and seafloor mapping using HRG surveys. Additionally, up to 10 UXO/MEC 
detonations may occur during construction if they cannot be safely 
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, with 
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 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. 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 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

[[Page 37625]]

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. In this proposed rule, 
all decibel levels referenced to 1[mu]Pa.
    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.
    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 sound 
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, 2019a) 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 one second), broadband, 
atonal transients (American National Standards Institute (ANSI), 1986, 
2005; Harris, 1998; National Institute for Occupational Safety and 
Health (NIOSH), 1998; International Organization for Standardization 
(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 (International Council for the Exploration of the Sea 
(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

[[Page 37626]]

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. Human-generated sound is a significant contributor to the 
acoustic environment in the project location.

Potential Effects of Underwater Sound on Marine Mammals

    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 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).
    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 Park City 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 animal) 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 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 Park City 
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).
Hearing 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., 2019a). 
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., 2019a). 
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., 2019a). Based on data 
from terrestrial mammals, a precautionary assumption is that the PTS 
thresholds, expressed in the unweighted peak sound pressure level 
metric (PK), for impulsive sounds (such as impact pile driving pulses) 
are at least 6 dB higher than the TTS thresholds and the weighted PTS 
cumulative sound exposure level thresholds are 15 (impulsive sound) to 
20 (non-impulsive sounds) dB higher than TTS cumulative sound exposure 
level thresholds (Southall et al., 2019a). Given the higher level of 
sound or longer exposure duration necessary to cause PTS as compared 
with TTS, PTS is less likely to occur as a result of these activities, 
but it is possible and a small amount has been proposed for 
authorization for several species.
    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

[[Page 37627]]

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 (Neophocaena 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., 2019a). 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. (2019a) 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, 2016b, 2016c; 
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 Effects
    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 to 
anthropogenic sound was first conducted by Richardson (1995). More 
recent reviews 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 (Nowacek et al., 2007; 
DeRuiter et al., 2012 and 2013; Ellison et al., 2012; Gomez et al., 
2016). 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., 2019a). 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. (2013a) 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. (2013a) 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 mid-
frequency sonar and found that whales responded strongly at low 
received levels (89-127 dB re 1[micro]Pa) by ceasing normal fluking and 
echolocation,

[[Page 37628]]

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, 2017b; 
Falcone et al., 2017; Dunlop et al., 2018; Southall et al., 2019a).
    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 six-fold 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. 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 
(Eschrichtius robustus) and 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., Malme et al., 1984; 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). 
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

[[Page 37629]]

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 (Tougaard et al., 2009; Bailey et al., 2010; D[auml]hne et al., 
2013; Lucke et al., 2012; Haelters et al., 2015).
    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 (Brasseur et al., 2012; Carroll et al., 2010; Hamre et al., 2011; 
Hastie et al., 2015; Russell et al., 2016). 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 Park City Wind proposes to install 
and, 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 Massachusetts. However, we do not 
anticipate any greater severity of response due to harbor porpoise and 
harbor seal habitat use off Massachusetts or population-level 
consequences similar to European findings. In many cases, harbor 
porpoises and harbor seals are resident to the areas where European 
wind farms have been constructed. However, off Massachusetts, harbor 
porpoises are primarily transient (with higher abundances in winter 
when foundation installation and UXO/MEC detonations 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.
    Some avoidance behavior of other marine mammal species has been 
documented to be dependent on distance from the source. 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 a 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). Park 
City Wind does not anticipate, and NMFS is not proposing to authorize 
take of beaked whales and, moreover, the sounds produced by Park City 
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 potential consequence of behavioral avoidance is 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).

[[Page 37630]]

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.
    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).
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; 
Goldbogen et al., 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, the type and magnitude 
of the response, and the context within which the response occurs 
(e.g., the surrounding environmental and anthropogenic circumstances).
    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 right whale social sounds or vessel noise, highlighting the 
importance of the sound characteristics in producing a behavioral 
reaction. 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 response to proposed pile driving activities. Converse to 
the behavior of North Atlantic right whales, 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 cessation of secondary 
indicators of foraging (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., 2013b; Farmer et al., 2018; Pirotta et al., 2018; 
Southall et al., 2019a; 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

[[Page 37631]]

behavior prior to, during, and following exposure to airgun 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 airguns had ceased firing. 
The remaining whales continued to execute foraging dives throughout 
exposure; however, swimming movements during foraging dives were 6 
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 both the proposed 
construction and HRG activities exceed the source levels of the signals 
described by Nowacek et al. (2004) and Croll et al. (2001), and noise 
generated by Park City Wind's activities at least partially 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 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., 2019).
    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 that individual 
fitness and health would be impacted, 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).
Vocalizations and Auditory Masking
    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 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 
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 airgun 
signals were detectable before ultimately decreasing calling rates at 
higher received levels.
    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,

[[Page 37632]]

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 and 
to 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 harassment when disrupting behavioral patterns. It is 
important to distinguish TTS and 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., 2017) 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).
    The echolocation calls of toothed whales are subject to masking by 
high-frequency sound. 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

[[Page 37633]]

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 and Blickley, 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 and 
Blickley, 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. 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 likely come at a cost (Patricelli 
and Blickley, 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 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 1 to 40 kHz band 
and reported that the whales increased their call source levels by 1 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, 
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 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.
Habituation and Sensitization
    Habituation can occur when an animal's response to a stimulus wanes

[[Page 37634]]

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; National Research Council (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; Houser et al., 2013b; Kastelein et al., 
2018). Observed responses of wild marine mammals to loud impulsive 
sound 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).
    Stone (2015) 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. Behavioral observations of gray whales during an airgun 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. 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.
Physiological Responses
    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 
sufficiently 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.
    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).
    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.
Stranding
    The definition for a stranding under title IV of the MMPA is that 
(A) a marine mammal is dead and is (i) on a beach or shore of the 
United States; or (ii) in waters under the jurisdiction of the

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United States (including any navigable waters); or (B) a marine mammal 
is alive and is (i) on a beach or shore of the United States and is 
unable to return to the water; (ii) on a beach or shore of the United 
States and, although able to return to the water, is in need of 
apparent medical attention; or (iii) in the waters under the 
jurisdiction of the United States (including any navigable waters), but 
is unable to return to its natural habitat under its own power or 
without assistance (16 U.S.C. 1421h).
    Marine mammal strandings have been linked to a variety of causes, 
such as illness from exposure to infectious agents, biotoxins, or 
parasites; starvation; unusual oceanographic or weather events; or 
anthropogenic causes including fishery interaction, ship strike, 
entrainment, entrapment, sound exposure, or combinations of these 
stressors sustained concurrently or in series. There have been multiple 
events worldwide in which marine mammals (primarily beaked whales, or 
other deep divers) have stranded coincident with relatively nearby 
activities utilizing loud sound sources (primarily military training 
events), and five in which mid-frequency active sonar has been more 
definitively determined to have been a contributing factor.
    There are multiple theories regarding the specific mechanisms 
responsible for marine mammal strandings caused by exposure to loud 
sounds. One primary theme is the behaviorally mediated responses of 
deep-diving species (odontocetes), in which their startled response to 
an acoustic disturbance (1) affects ascent or descent rates, the time 
they stay at depth or the surface, or other regular dive patterns that 
are used to physiologically manage gas formation and absorption within 
their bodies, such that the formation or growth of gas bubbles damages 
tissues or causes other injury, or (2) results in their flight to 
shallow areas, enclosed bays, or other areas considered ``out of 
habitat,'' in which they become disoriented and physiologically 
compromised. For more information on marine mammal stranding events and 
potential causes, please see the Mortality and Stranding section of 
NMFS Proposed Incidental Take Regulations for the Navy's Training and 
Testing Activities in the Hawaii-Southern California Training and 
Testing Study Area (50 CFR part 218, Volume 83, No. 123, June 26, 
2018).
    The construction activities proposed by Park City Wind (i.e., pile 
driving, drilling, UXO/MEC detonation) do not inherently have the 
potential to result in marine mammal strandings. While vessel strikes 
and UXO/MEC detonation could kill or injure a marine mammals (which may 
eventually strand), the required mitigation measures would reduce the 
potential for take from these activities to de minimus levels (see 
Proposed Mitigation section for more details). As described above, no 
mortality or serious injury is anticipated or proposed to be authorized 
from any Project activities.
    Of the strandings documented to date worldwide, NMFS is not aware 
of any being attributed to pile driving, a single UXO/MEC detonation of 
the charge weights proposed here, or the types of HRG equipment 
proposed for use during the Project. Recently, there has been 
heightened interest in HRG surveys and their potential role in recent 
marine mammals strandings along the U.S. east coast. HRG surveys 
involve the use of certain sources to image the ocean bottom, which are 
very different from seismic airguns used in oil and gas surveys or 
tactical military sonar, in that they produce much smaller impact 
zones. Marine mammals may respond to exposure to these sources by, for 
example, avoiding the immediate area, which is why offshore wind 
developers have authorization to allow for Level B (behavioral) 
harassment, including Park City Wind. However, because of the 
combination of lower source levels, higher frequency, narrower beam-
width (for some sources), and other factors, the area within which a 
marine mammal might be expected to be behaviorally disturbed by HRG 
sources is much smaller (by orders of magnitude) than the impact areas 
for seismic airguns or the military sonar with which a small number of 
marine mammal have been causally associated. Specifically, estimated 
harassment zones for HRG surveys are typically less than 200m (such as 
those associated with the Project), while zones for military mid-
frequency active sonar or seismic airgun surveys typically extend for 
several kms ranging up to 10s of km. Further, because of this much 
smaller ensonified area, any marine mammal exposure to HRG sources is 
reasonably expected to be at significantly lower levels and shorter 
duration (associated with less severe responses), and there is no 
evidence suggesting, or reason to speculate, that marine mammals 
exposed to HRG survey noise are likely to be injured, much less strand, 
as a result. Last, all but one of the small number of marine mammal 
stranding events that have been causally associated with exposure to 
loud sound sources have been deep-diving toothed whale species (not 
mysticetes), which are known to respond differently to loud sounds.

Potential Effects of 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 are numerous data relating the exposure of terrestrial 
mammals from sound to effects on reproduction or survival, and data for 
marine mammals continues to grow. 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 ``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

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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.
    There are few studies that directly illustrate the impacts of 
disturbance on marine mammal populations. 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).
    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).
    Since the PCoD general framework was outlined and the relevant 
supporting literature compiled, multiple studies developing state-space 
energetic models for species with extensive long-term monitoring (e.g., 
southern elephant seals, North Atlantic right whales, Ziphiidae beaked 
whales, and bottlenose dolphins) have been conducted and 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 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

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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).
    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).
    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, as described above, 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 six-fold 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 remain unchanged. Similarly, two bottlenose 
dolphin populations in Australia were also modeled over 5 years against 
a number of disturbances (Reed et al., 2020), and results indicated 
that habitat/noise disturbance had little overall impact on population 
abundances in either location, even in the most extreme impact 
scenarios modeled.
    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. This method may be 
useful for future management goals when appropriate data becomes 
available to fully support the model. Harbor porpoise movement and 
foraging were modeled for baseline periods and then for periods with 
seismic surveys as well; the models demonstrated that the seasonality 
of the seismic activity was an important predictor of impact (Gallagher 
et al., 2021).
    In their Table 1, Keen et al. (2021) summarize the emerging themes 
in PCoD models that should be considered when assessing the likelihood 
and duration of exposure and the sensitivity of a population to 
disturbance (see Table 1 from Keen et al., 2021, below). The themes are 
categorized by life history traits (movement ecology, life history 
strategy, body size, and pace of life), disturbance source 
characteristics (overlap with biologically important areas, duration 
and frequency, and nature and context), and environmental conditions 
(natural variability in prey availability and climate change). Keen et 
al. (2021) then summarize how each of these features influence an 
assessment, noting, for example, that individual animals with small 
home ranges have a higher likelihood of prolonged or year-round 
exposure, that the effect of disturbance is strongly influenced by 
whether it overlaps with biologically important habitats when 
individuals are present, and that continuous disruption will have a 
greater impact than intermittent disruption.
    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; National Academies of Sciences, Engineering, and Medicine 
(NAS), 2017; New et al., 2014; Pirotta et al., 2018a; 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 Park City Wind's 
activities is not expected to impact individual animals' health or have 
effects on individual animals' survival or reproduction, thus no 
detrimental impacts at the population level are anticipated. 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 Park City Wind would not detonate more than 1 UXO/MEC per day and 
only 10 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

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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 more serious injuries or mortality discussed above are likely to 
result from any UXO/MEC detonation that Park City 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 From 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 knots. 
The majority (79 percent) of these strikes occurred at speeds of 13 
knots or greater. The average speed that resulted in serious injury or 
death was 18.6 knots. 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 knots, and exceeded 90 percent at 17 knots. 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 knots. The chances of a lethal injury decline from 
approximately 80 percent at 15 knots to approximately 20 percent at 8.6 
knots. At speeds below 11.8 knots, the chances of lethal injury drop 
below 50 percent, while the probability asymptotically increases toward 
100 percent above 15 knots.
    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, the 
Project'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

[[Page 37639]]

required to report all ship strikes involving marine mammals.
    There are no known vessel strikes of marine mammals by any offshore 
wind energy vessel in the U.S. Given the extensive mitigation and 
monitoring measures (see the Proposed Mitigation and Proposed 
Monitoring and Reporting section) that would be required of Park City 
Wind, NMFS believes that a vessel strike is not likely to occur.

Potential Effects to Marine Mammal Habitat

    Park City Wind's proposed activities could potentially affect 
marine mammal habitat through the introduction of impacts to the prey 
species of marine mammals (through noise, oceanographic processes, or 
reef effects), acoustic habitat (sound in the water column), water 
quality, and biologically important habitat for marine mammals.
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 and Mann, 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 
airguns) 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 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., 2012a; 
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., 2012a; 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., 2012a; 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.
    Pile-driving noise during construction is of particular concern as 
the very high sound pressure levels could potentially prevent fish from 
reaching breeding or spawning sites, finding food, and acoustically 
locating mates. A playback

[[Page 37640]]

study in West Scotland revealed that there was a significant movement 
response to the pile-driving stimulus in both species at relatively low 
received sound pressure levels (sole: 144-156 dB re 1[mu]Pa Peak; cod: 
140-161 dB re 1 [mu]Pa Peak, particle motion between 6.51 x 10\3\ and 
8.62 x 10\4\ m/s\2\ peak) (Mueller-Blenkle et al., 2010). The swimming 
speed of sole increased significantly during the playback of 
construction noise when compared to the playbacks of before and after 
construction. While not statistically significant, cod also displayed a 
similar behavioral response during before, during, and after 
construction playbacks. However, cod demonstrated a specific and 
significant freezing response at the onset and cessation of the 
playback recording. In both species, indications were present 
displaying directional movements away from the playback source. During 
wind farm construction in the Eastern Taiwan Strait, Type 1 soniferous 
fish chorusing showed a relatively lower intensity and longer duration 
while Type 2 chorusing exhibited higher intensity and no changes in its 
duration. Deviation from regular fish vocalization patterns may affect 
fish reproductive success, cause migration, augmented predation, or 
physiological alterations.
    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 fish auditory 
impairment, injury and mortality. Popper et al. (2014) found that fish 
with or without air bladders could experience TTS at 186 dB 
SELcum. Mortality could occur for fish without swim bladders 
at >216 dB SELcum. Those with swim bladders or at the egg or 
larvae life stage, mortality was possible at >203 dB SELcum. 
Other studies found that 203 dB SELcum or above caused a 
physiological response in other fish species (Casper et al., 2012, 
Halvorsen et al., 2012a, Halvorsen et al., 2012b, Casper et al., 2013a; 
Casper et al., 2013b). 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, Park City 
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 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 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 airguns) (Halvorsen et al., 2012b; Casper 
et al., 2013a).
    Fish not killed 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 airgun 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

[[Page 37641]]

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 U.S. 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., 2017). 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 airgun 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]Pa\2\ and 400 Hz, 139 to 141 dB re 1 [mu]Pa\2\). Fewtrell and 
McCauley (2012) reported squids maintained in cages displayed startle 
responses and behavioral changes when exposed to seismic airgun sonar 
(136-162 re 1 [mu]Pa\2\[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., 2000; 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.
    With regard to potential impacts on zooplankton, McCauley et al. 
(2017) found that exposure to airgun noise resulted in significant 
depletion for more than half the taxa present and that there were two 
to three times more dead zooplankton after airgun exposure compared 
with controls for all taxa, within 1 km of the airguns. However, the 
authors also stated that in order to have significant impacts on r-
selected species (i.e., those with high growth rates and that produce 
many offspring) such as plankton, the spatial or temporal scale of 
impact must be large in comparison with the ecosystem concerned, and it 
is possible that the findings reflect avoidance by zooplankton rather 
than mortality (McCauley et al., 2017). In addition, the results of 
this study are inconsistent with a large body of research that 
generally finds limited spatial and temporal impacts to zooplankton as 
a result of exposure to airgun noise (e.g., Dalen and Knutsen, 1987; 
Payne, 2004; Stanley et al., 2011). Most prior research on this topic, 
which has focused on relatively small spatial scales, has showed 
minimal effects (e.g., Kostyuchenko, 1973; Booman et al., 1996; 
S[aelig]tre and Ona, 1996; Pearson et al., 1994; Bolle et al., 2012).
    A modeling exercise was conducted as a follow-up to the McCauley et 
al. (2017) study (as recommended by McCauley et al.), in order to 
assess the potential for impacts on ocean ecosystem dynamics and 
zooplankton population dynamics (Richardson et al., 2017). Richardson 
et al. (2017) found that a full-scale airgun survey would impact 
copepod abundance within the survey area, but that effects at a 
regional scale were minimal (2 percent decline in abundance within 150 
km of the survey area and effects not discernible over the full 
region). The authors also found that recovery within the survey area 
would be relatively quick (3 days following survey completion), and 
suggest that the quick recovery was due to the fast growth rates of 
zooplankton, and the dispersal and mixing of zooplankton from both 
inside and outside of the impacted region. The authors also suggest 
that surveys in areas with more dynamic ocean circulation in comparison 
with the study region and/or with deeper waters (i.e., typical offshore 
wind locations) would have less net impact on zooplankton.
    Notably, a recently described study produced results inconsistent 
with those of McCauley et al. (2017). Researchers conducted a field and 
laboratory study to assess if exposure to airgun noise affects 
mortality, predator escape response, or gene expression of the copepod 
Calanus finmarchicus (Fields et al., 2019). Immediate mortality of 
copepods was significantly higher, relative to controls, at distances 
of 5 m or less from the airguns. Mortality 1 week after the airgun 
blast was significantly higher in the copepods placed 10 m from the 
airgun but was not significantly different from the controls at a 
distance of 20 m from the airgun. The increase in mortality, relative 
to controls, did not exceed 30 percent at any distance from the airgun. 
Moreover, the authors caution that even this higher mortality in the 
immediate vicinity of the airguns may be more pronounced than what 
would be observed in free-swimming animals due to increased flow speed 
of fluid inside bags containing the experimental animals. There were no 
sub-lethal effects on the escape performance or the sensory threshold 
needed to initiate an escape response at any of the distances from the 
airgun that were tested. Whereas McCauley et al. (2017) reported an SEL 
of 156 dB at a range of 509-658 m, with zooplankton mortality observed 
at that range, Fields et al. (2019) reported an

[[Page 37642]]

SEL of 186 dB at a range of 25 m, with no reported mortality at that 
distance.
    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. Topside, atmospheric wakes 
result in wind speed reductions influencing upwelling and downwelling 
in the ocean while underwater structures such as WTG and ESP 
foundations may cause turbulent current wakes, which impact 
circulation, stratification, mixing, and sediment resuspension (Daewel 
et al., 2022). Overall, 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).
    Park City Wind intends to install up to 130 WTG and ESP positions. 
Two positions may potentially have co-located ESPs (i.e., 1 WTG and 1 
ESP foundation installed at 1 grid position), resulting in 132 
foundations with turbine operations commencing in 2027 and all turbines 
being operational in 2028. As described above, there is scientific 
uncertainty around the scale of oceanographic impacts (meters to 
kilometers) associated with turbine operation. The project is located 
in an area of southern 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). The 
lease area is located within a core winter foraging habitat for North 
Atlantic right whales (Leiter et al., 2017; Quintano-Rizzo et al., 
2021); however, prime foraging habitat on and 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 the turbine presence and operation 
during the effective period of the proposed rule is likely to be 
limited. Nearby habitat that is known to support North Atlantic right 
whale foraging would be unaffected by the project's 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, water 
quality, 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.
Reef Effects
    The presence of monopile 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. 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). This colonization by 
marine species, especially hard-substrate preferring species, can 
result in changes to the diversity, composition, and/or biomass of the 
area thereby impacting the trophic composition of the site (Wilhelmsson 
et al., 2010, Krone et al., 2013; Bergstr[ouml]m et al., 2014, Hooper 
et al., 2017; Raoux et al., 2017; Harrison and Rousseau, 2020; Taormina 
et al., 2020; Buyse et al., 2022a; ter Hofstede et al., 2022).
    Artificial structures can create increased habitat heterogeneity 
important for species diversity and density (Langhamer, 2012). The WTG 
and ESP 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). Further, instances of species previously 
unknown, rare, or nonindigenous to an area have been documented at 
artificial structures, changing the composition of the food web and 
possibly the attractability of the area to new or existing predators 
(Adams et al., 2014; de Mesel, 2015; Bishop et al., 2017; Hooper et 
al., 2017; Raoux et al., 2017; van Hal et al., 2017; Degraer et al., 
2020; Fernandez-Betelu et al., 2022). Notably, there are examples of 
these sites becoming dominated by marine mammal prey species, such as 
filter-feeding species and suspension-feeding crustaceans (Andersson 
and [Ouml]hman, 2010; Slavik et al., 2019; Hutchison et al., 2020; Pezy 
et al., 2020; Mavraki et al., 2022).
    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

[[Page 37643]]

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 (Rhode Island Coastal 
Resources Management Council (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 pile driving and UXO/MEC detonations, which may 
affect marine mammal food sources such as forage fish and could also 
affect acoustic habitat effects on marine mammal prey (e.g., fish).
Water Quality
    Temporary and localized reduction in water quality will occur as a 
result of in-water construction activities. Most of this effect will 
occur during pile driving and installation of the cables, including 
auxiliary work such as dredging and scour placement. These activities 
will disturb bottom sediments and may cause a temporary increase in 
suspended sediment in the project area. Currents should quickly 
dissipate any raised total suspended sediment (TSS) levels, and levels 
should return to background levels once the project activities in that 
area cease. No direct impacts on marine mammals is anticipated due to 
increased TSS and turbidity; however, turbidity within the water column 
has the potential to reduce the level of oxygen in the water and 
irritate the gills of prey fish species in the proposed project area. 
However, turbidity plumes associated with the project would be 
temporary and localized, and fish in the proposed project area would be 
able to move away from and avoid the areas where plumes may occur. 
Therefore, it is expected that the impacts on prey fish species from 
turbidity, and therefore on marine mammals, would be minimal and 
temporary.
    Equipment used by Park City Wind within the project area, including 
ships and other marine vessels, potentially aircrafts, and other 
equipment, are also potential sources of by-products (e.g., 
hydrocarbons, particulate matter, heavy metals). All equipment is 
properly maintained in accordance with applicable legal requirements. 
All such operating equipment meets Federal water quality standards, 
where applicable. Given these requirements, impacts to water quality 
are expected to be minimal.
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 airgun 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 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 (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., 2014).
    Sound produced from construction activities in the 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.
    Although this proposed rulemaking primarily covers the noise 
produced from construction activities relevant to this offshore wind 
facility, operational noise was a consideration in NMFS' analysis of 
the project, as all turbines would become operational within the 
effective dates of the rule (if issued). It is expected that all 
turbines would be operational in 2028. Once operational, offshore wind 
turbines are known to produce continuous, non-impulsive underwater 
noise, primarily below 1 kHz (Tougaard et al., 2020; St[ouml]ber and 
Thomsen, 2021).
    In both newer, quieter, direct-drive systems (such as what has been

[[Page 37644]]

proposed for use in the Project) 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). Recent measurements of operational sound 
generated from wind turbines (direct drive, 6 MW, jacket piles) at 
Block Island wind farm (BIWF) indicate average broadband levels of 119 
dB at 50 m from the turbine, with levels varying with wind speed (HDR, 
Inc., 2019). Interestingly, measurements from BIWF turbines showed 
operational sound had less tonal components compared to European 
measurements of turbines with gear boxes.
    Tougaard et al. (2020) 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 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). Similarly, recent measurements from a wind farm 
(3 MW turbines) in China found at above 300 Hz, turbines produced sound 
that was similar to background levels (Zhang et al., 2021). 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 kilometers, 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 predicts broadband source 
levels could exceed 170 dB SPLrms for a 10 MW WTG; however, 
those noise levels were generated based on geared turbines; newer 
turbines operate with direct drive technology. The shift from using 
gear boxes to direct drive technology is expected to reduce the levels 
by 10 dB. The findings in the St[ouml]ber and Thomsen (2021) study have 
not been experimentally validated, though the modeling (using largely 
geared turbines) performed by Tougaard et al. (2020) yields similar 
results for a hypothetical 10 MW WTG. Overall, noise from operating 
turbines would raise ambient noise levels in the immediate vicinity of 
the turbines; however, the spatial extent of increased noise levels 
would be limited. NMFS proposes to require Park City Wind to measure 
operational noise levels.
    In addition, Madsen et al. (2006b) 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. Park City 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 the 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 has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment) 
or has the potential to disturb a marine mammal or marine mammal stock 
in the wild by causing disruption of behavioral patterns, including, 
but not limited to, migration, breathing, nursing, breeding, feeding, 
or sheltering (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as noise 
from pile driving, drilling, HRG surveys, and UXO/MEC detonations could 
result in behavioral disturbance of marine mammals that qualifies as 
take. Impacts such as masking and TTS can contribute to the disruption 
of behavioral patterns and are accounted for within those takes 
proposed for authorization. There is also some potential for auditory 
injury (Level A harassment) of all marine mammals except North Atlantic 
right whales. However, the amount of Level A harassment that Park City 
Wind requested, and NMFS proposes to authorize, is low. 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 and Proposed Monitoring and Reporting).
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized incidental to the specified 
activities. Even without mitigation, both pile driving activities and 
HRG surveys would not have the potential to directly cause marine 
mammal mortality or serious injury. However, NMFS is proposing measures 
to more comprehensively reduce impacts to marine mammal species. While, 
in general, 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 vessel strikes and the potential for 
marine mammals to be close enough to any UXO/MEC detonation to incur 
mortality or non-auditory injury (see Proposed Mitigation section). No 
other activities have the potential to result in mortality or serious 
injury.
    For acoustic impacts, we estimate take by considering: (1) acoustic 
thresholds above which the best available science indicates marine 
mammals will be behaviorally harassed or incur some degree of permanent 
hearing impairment; (2) the area or volume of

[[Page 37645]]

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.
    As described below, there are multiple methods available to predict 
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 take proposed for authorization, by Level B 
harassment. The amount of take proposed for authorization, by Level A 
harassment, reflects the density-based exposure estimates and, for some 
species and activities, consideration of other data such as mean group 
size.
    Below, we describe NMFS' acoustic thresholds, acoustic and exposure 
modeling methodologies, marine mammal density calculation methodology, 
occurrence information, and the modeling and methodologies applied to 
estimate take for each of the Project's proposed construction 
activities. NMFS has carefully considered all information and analysis 
presented by Park City Wind, as well as all other applicable 
information and, based on the best available science, concurs that the 
Project's estimates of the types and amounts of take for each species 
and stock are reasonable, and is proposing to authorize the amount 
requested. 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.

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 (Level B 
harassment) or to incur PTS of some degree (Level A harassment). A 
summary of all NMFS' thresholds can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Level B Harassment
    Though significantly driven by received level, the onset of 
behavioral disturbance from anthropogenic noise exposure is also 
informed to varying degrees by other factors related to the source or 
exposure context (e.g., frequency, predictability, duty cycle, duration 
of the exposure, signal-to-noise ratio, distance to the source, ambient 
noise, and the receiving animal's hearing, motivation, experience, 
demography, behavior at time of exposure, life stage, depth) and can be 
difficult to predict (e.g., Southall et al., 2007, 2021; Ellison et 
al., 2012). Based on what the available science indicates and the 
practical need to use a threshold based on a metric that is both 
predictable and measurable for most activities, NMFS typically uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment.
    NMFS generally predicts that marine mammals are likely to be 
behaviorally harassed in a manner considered to be Level B harassment 
when exposed to underwater anthropogenic noise above the received sound 
pressure levels (SPLRMS) of 120 dB for continuous sources 
(e.g., vibratory pile-driving, drilling) and above the received 
SPLRMS 160 dB for non-explosive impulsive or intermittent 
sources (e.g., impact pile driving, scientific sonar). 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 behavioral patterns that would not otherwise 
occur.
    The proposed Project's construction activities include the use of 
continuous (e.g., vibratory pile driving, drilling) and impulsive or 
intermittent sources (e.g., impact pile driving, some HRG acoustic 
sources); therefore, the 120 and 160 dB re 1 [mu]Pa (rms) thresholds 
are applicable to our analysis. Level B harassment thresholds 
associated with UXO/MEC detonations are addressed in the Explosives 
Source Thresholds section below.
Level A Harassment
    NMFS' Technical Guidance for Assessing the Effects of Anthropogenic 
Sound on Marine Mammal Hearing (Version 2.0; Technical Guidance) (NMFS, 
2018) identifies dual criteria to assess auditory injury (Level A 
harassment) to five different marine mammal groups (based on hearing 
sensitivity) as a result of exposure to noise from two different types 
of sources (impulsive or non-impulsive). As dual metrics, NMFS 
considers onset of PTS (Level A harassment) to have occurred when 
either one of the two metrics is exceeded (i.e., metric resulting in 
the largest isopleth). As described above, Park City Wind's proposed 
activities include the use of both impulsive and non-impulsive sources. 
NMFS' thresholds identifying the onset of PTS are provided in Table 7. 
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.

[[Page 37646]]



                           Table 7--Permanent Threshold Shift (PTS) Onset Thresholds *
                                                  [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, LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lp,0-pk,flat: 230   Cell 4: LE,p, MF,24h: 198 dB.
                                          dB; LE,p, MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lp,0-pk,flat: 202   Cell 4: LE,p, HF,24h: 198 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.
Note: Peak sound pressure level (L0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
  exposure level (LE,) 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.

Explosives Source Thresholds
    Based on the best scientific information available, NMFS uses the 
acoustic and pressure thresholds indicated in Table 8 to predict the 
onset of PTS and TTS during UXO/MEC detonation. For a single detonation 
(within a 24-hour period), NMFS relies on the TTS onset threshold to 
assess the potential for Level B harassment. The proposed rule is 
conditioned such that Park City Wind would limit detonations to one per 
day and would be limited to daylight hours only.

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

    Additional thresholds for non-auditory injury to lung and 
gastrointestinal (GI) tracts from the blast shock wave and/or onset of 
high peak pressures are also relevant (at relatively close ranges) as 
UXO/MEC detonations, in general, have potential to result in mortality 
and non-auditory injury (Table 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    Slight lung injury
          Hearing group               lung injury) *              *                    G.I. tract injury
----------------------------------------------------------------------------------------------------------------
All Marine Mammals...............  Cell 1: Modified      Cell 2: Modified     Cell 3: Lpk,flat: 237 dB.
                                    Goertner model;       Goertner model;
                                    Equation 1.           Equation 2.
----------------------------------------------------------------------------------------------------------------
* Lung injury (severe and slight) thresholds are dependent on animal mass (Recommendation: Table C.9 from DoN
  (2017) based on adult and/or calf/pup mass by species).
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa. In this table, thresholds are abbreviated
  to reflect American National Standards Institute standards (ANSI, 2013). However, ANSI defines peak sound
  pressure as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the
  subscript ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted
  within the overall marine mammal generalized hearing range.

[[Page 37647]]

 
Modified Goertner Equations for severe and slight lung injury (pascal-second):
Equation 1: 103M1/3(1 + D/10.1)1/6 Pa-s.
Equation 2: 47.5M1/3(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 the assumptions and methodologies used to 
estimate take, in consideration of acoustic thresholds and appropriate 
marine mammals density and occurrence information, for WTG and ESP 
foundation installation, UXO/MEC detonation, and HRG surveys. 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 amount of annual and 5-year take that Park 
City Wind requested, and NMFS proposes to authorize, from all 
activities combined.

Acoustic and Exposure Modeling

    The predominant underwater noise associated with the construction 
of the Project results from impact and vibratory pile driving and 
drilling. Park City Wind employed JASCO Applied Sciences (USA) Inc. 
(JASCO) to conduct acoustic modeling to better understand sound fields 
produced during these activities (K[uuml]sel et al., 2022). The basic 
modeling approach is to characterize the sounds produced by the source, 
and determine how the sounds propagate within the surrounding water 
column. For impact pile driving, JASCO conducted sophisticated source 
and propagation modeling (as described below). For vibratory pile 
driving and drilling activities, JASCO applied in situ data to estimate 
source levels and applied a general practical spreading loss (15logR) 
assumption. To assess the potential for take from impact pile driving, 
JASCO also conducted animal movement modeling to estimate take; JASCO 
estimated species-specific exposure probability by considering the 
range- and depth-dependent sound fields in relation to animal movement 
in simulated representative construction scenarios. To assess the 
potential for take from vibratory pile driving and drilling, exposure 
modeling was not conducted. More details on these acoustic source 
modeling, propagation modeling and exposure modeling methods are 
described below.
    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 GRL, Inc. Wave Equation Analysis of Pile 
Driving (GRLWEAP) 2010 wave equation model (Pile Dynamics, 2010) to 
predict source levels associated with impact pile driving activities 
(WTG and ESP foundation 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. This model is used to estimate the energy 
distribution per frequency (source spectrum) at a close distance from 
the source (10 m). 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 monopile and jacket foundation pile 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 (see Figures 13-15 in Appendix A 
of Park City Wind's ITA application for the computed forcing 
functions). 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). For both jacket and monopile foundation models, the piles 
are assumed to be vertical and driven to a penetration depth of 50 m 
and 40 m, respectively.
    Park City Wind would use at least two noise abatement systems (NAS) 
during all pile driving and drilling associated with foundation 
installations and UXO/MEC detonations, such as a double bubble curtain 
or single bubble curtain and an encapsulated bubble or foam sleeve, to 
reduce sound levels. NAS, 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, and 12 
dB were incorporated into the foundation source models to gauge effects 
on the ranges to thresholds given these levels of attenuation (Appendix 
G of the ITA application). Although four attenuation levels were 
evaluated, Park City Wind and NMFS anticipate that the noise 
attenuation system ultimately chosen will be capable of reliably 
reducing source levels by 10 dB; therefore, this assumption was carried 
forward in this analysis for monopile and jacket foundation pile 
driving installation, drilling activities, and UXO/MEC detonations. See 
the Proposed Mitigation section for more information regarding the 
justification for the 10-dB assumption.
    In addition to considering noise abatement, the amount of sound 
generated during pile driving varies with the energy required to drive 
piles to a desired depth and depends on the sediment resistance 
encountered. Sediment types with greater resistance require hammers 
that deliver higher energy strikes and/or an increased number of 
strikes relative to installations in softer sediment. Maximum sound 
levels usually occur during the last stage of impact pile driving where 
the greatest resistance is encountered (Betke, 2008). Key modeling 
assumptions for the monopiles and pin piles are listed in Table 10 
(additional modeling details and input parameters can be found in 
K[uuml]sel et al. (2022)). Hammer energy schedules for monopiles (12-m) 
and pin piles (4-m) are provided in Table 11, respectively, and the 
resulting broadband source level comparisons of the 12-m and 13-
monopiles are presented in Table 12. Decidecade spectral source levels 
for each pile type, hammer energy, and modeled location for summer 
sound speed profiles can be found in Appendix A of Park City Wind's ITA 
application (Figures 16 to 18).

[[Page 37648]]



                          Table 10--Key Piling Assumptions Used in the Source Modeling
----------------------------------------------------------------------------------------------------------------
                                             Maximum impact       Wall                     Seabed
              Foundation type                 hammer energy    thickness   Pile length  penetration   Number per
                                                  (kJ)            (mm)         (m)       depth (m)       day
----------------------------------------------------------------------------------------------------------------
12-m Monopile \1\.........................             6,000          200           95           40          1-2
4-m Jacket Pin Pile 2 3...................             3,500          100          100           50            4
----------------------------------------------------------------------------------------------------------------
\1\ A 12-m monopile using 6,000 kJ was considered representative of the other monopile approaches as the 13-m is
  unlikely to occur.
\2\ Jacket foundations each require the installation of three to four jacket securing piles, known as pin piles.
\3\ The bottom-frame foundation is similar to the jacket foundation, with the same maximum 4-m pile diameter,
  but with shorter piles and shallower penetration and was therefore not modeled separately in the acoustic
  assessment. It is assumed that the potential acoustic impact of the bottom-frame foundation installation is
  equivalent to or less than that predicted for the jacket foundation.


                                                      Table 11--Hammer Energy Schedules for Monopiles and Pin Piles Used in Source Modeling
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
           12-m monopile 5000 kJ hammer               13-m monopile 5000 kJ hammer        12-m monopile 6000 kJ hammer         4-m pin pile 3500 kJ hammer      13-m monopile 6000 kJ hammer \1\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Energy level                        Energy level                        Energy level                        Energy level
       Energy level (kJ)           Strike count          (kJ)          Strike count          (kJ)          Strike count          (kJ)          Strike count          (kJ)          Strike count
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1,000..........................  690.............  1,000...........  745.............  1,000...........  750.............  525.............  875.............  1,000...........  850
1,000..........................  1,930...........  1,000...........  2,095...........  2,000...........  1,250...........  525.............  1,925...........  2,000...........  1,375
2,000..........................  1,910...........  2,000...........  2,100...........  3,000...........  1,000...........  1000............  2,165...........  3,000...........  1,100
3,000..........................  1,502...........  3,000...........  1,475...........  45,000..........  1000............  3,500...........  3,445...........  4,500...........  1,100
5,000..........................  398.............  5,000...........  555.............  6,000...........  500.............  3,500...........  1,395...........  6,000...........  550
Total..........................  6,430...........  Total...........  6,970...........  Total...........  4,500...........  Total...........  9,805...........  Total...........  4,975
Strike Rate....................  30.0 bpm........  Strike Rate.....  30.0 bpm........  Strike Rate.....  25.0 bpm........  Strike Rate.....  30.0 bpm........  Strike Rate.....  27.6 bpm.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Due to the unlikely event Park City Wind installs a 13-m pile with a 6,000 kJ hammer, source levels were modeled to estimate the distances to mitigation zones; however, exposure modeling
  was not conducted for this scenario.


      Table 12--Broadband Impact Pile Driving Source Level Comparisons Between the 12-m and 13-m Monopiles
----------------------------------------------------------------------------------------------------------------
                                                           12-m monopile      13-m monopile
                                                        --------------------------------------    Source level
                Hammer energy level (kJ)                  Source level (dB   Source level (dB   difference (dB)
                                                                SPL)               SPL)
----------------------------------------------------------------------------------------------------------------
1,000..................................................             221.94             222.27               0.34
2,000..................................................             223.30             223.43               0.14
3,000..................................................             224.55             225.52               0.96
4,500..................................................             226.31             226.09               0.22
6,000..................................................             227.32             228.56               1.23
----------------------------------------------------------------------------------------------------------------

    For vibratory pile driving and drilling, source level modeling to 
estimate sound exposure levels was conducted based on extrapolations of 
source level data from smaller piles. Received SEL levels at 10 m for 
smaller, round steel piles driven with vibratory hammers were plotted 
as a function of pile diameter and fitted with a power function and 
then extrapolated for a 13-m diameter pile. While this method was 
applied to estimate SEL, the power function fit method described above 
for the received SPL at 10 m is poor, so an alternative approach to 
estimate SPL was derived. Noting that animals are not expected to 
experience a behavioral response at distances greater than 50 km 
(Dunlop et al. 2017a, 2017b), Park City Wind calculated the source 
level necessary to produce a received level of 120 dB at 50 km assuming 
practical spreading loss (15logR) resulting in a source level of 190.5 
dB SPL. The drilling source level was estimated based on drilling data 
collected in the Alaska Chukchi and Beaufort Sea (Austin et al., 2018). 
Resulting source levels assuming 10-dB attenuation from use of noise 
abatement (e.g., double bubble curtain) can be found in Table 13.

 Table 13--Assumed Source Levels for Vibratory Pile Driving and Drilling
                           of Foundation Piles
------------------------------------------------------------------------
                                   Source level SEL    Source level SPL
            Activity                     (dB)                (dB)
------------------------------------------------------------------------
Vibratory driving (13-m piles)..             \1\ 188               190.5
Drilling........................                 N/A           \2\ 183.3
------------------------------------------------------------------------
\1\ Extrapolation of data resulted in a source level (SEL) of 198 dB.
\2\ Source level reported in Austin et al. (2018) is 193.3 dB SPL, based
  on a measured received level of 141.8 dB at 1 km.

    After calculating source levels, Park City Wind used propagation 
models to estimate distances to NMFS' harassment thresholds. The 
propagation of sound through the environment can be modeled by 
predicting the acoustic propagation loss--a measure, in decibels, of 
the decrease in sound level between a source and a receiver some 
distance away. Geometric spreading of acoustic waves is the predominant 
way by which propagation loss occurs.

[[Page 37649]]

Propagation loss also happens when the sound is absorbed and scattered 
by the seawater, and absorbed, scattered, and reflected at the water 
surface and within the seabed. Propagation loss depends on the acoustic 
properties of the ocean and seabed and its value changes with 
frequency. Acoustic propagation modeling for impact pile driving 
applied JASCO's Marine Operations Noise Model (MONM) and Full Wave 
Range Dependent Acoustic Model (FWRAM) that combine the outputs of the 
source model with the spatial and temporal environmental context (e.g., 
location, oceanographic conditions, and seabed type) to estimate sound 
fields. The lower frequency bands were modeled using MONM-RAM, which is 
based on the parabolic equation method of acoustic propagation 
modeling. For higher frequencies, additional losses resulting from 
absorption were added to the transmission loss model. See Appendix F in 
Park City Wind's application for a more detailed description of JASCO's 
propagation models.
    Sounds produced by installation of the proposed monopiles were 
modeled at two sites (M1 and M2) for the 12-m diameter monopile 
foundations--M1 in the northwest section of the SWDA in 44 m water 
depth and M2 in the southeast section of the SWDA at 52 m water depth. 
Acoustic propagation modeling was conducted for 4-m diameter jacket 
foundation piles assuming a site in the central area of the SWDA at 53 
m water depth. Modeling locations are shown in Figure 7 of the ITA 
application. These locations were chosen based on the phasing plans of 
the Project, which involves the installation of 12-m diameter monopiles 
in Phase 1 and 13-m diameter monopiles in Phase 2, with jacket 
foundations planned for both phases. The 13-m diameter piles were only 
considered for modeling of the source functions for comparison with the 
12-m diameter piles, which showed minimal difference in the forcing 
function and source spectra output for the two sizes. As the 12-m 
monopile represents the maximum size monopile for Phase 1 of the 
Project and the average size monopile for Phase 2, propagation modeling 
continued with the 12 m monopile.
    Due to seasonal changes in the water column, sound propagation is 
likely to differ at different times of the year. The speed of sound in 
seawater depends on the temperature T (degree Celsius), salinity S 
(parts per thousand (ppt)), and depth D (m) and can be described using 
sound speed profiles. Oftentimes, a homogeneous or mixed layer of 
constant velocity is present in the first few meters. It corresponds to 
the mixing of surface water through surface agitation. There can also 
be other features, such as a surface channel, which corresponds to 
sound velocity increasing from the surface down. This channel is often 
due to a shallow isothermal layer appearing in winter conditions, but 
can also be caused by water that is very cold at the surface. In a 
negative sound gradient, the sound speed decreases with depth, which 
results in sound refracting downwards, which may result in increased 
bottom losses with distance from the source. In a positive sound 
gradient, as is predominantly present in the winter season, sound speed 
increases with depth and the sound is, therefore, refracted upwards, 
which can aid in long distance sound propagation.
    Acoustic propagation modeling for impact pile driving foundations 
was conducted using an average sound speed profile for a summer period 
given this would be when Park City Wind would conduct the majority, if 
not all of its foundation installation work. FWRAM computes pressure 
waveforms via Fourier synthesis of the modeled acoustic transfer 
function in closely spaced frequency bands. 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). Resulting distances to NMFS' harassment 
thresholds for impact driving can be found in the WTG and ESP 
Foundation Installation subsection below.
    For vibratory pile driving and drilling during foundation 
installation, Park City Wind assumed a simple practical spreading loss 
(15logR). Resulting distances to NMFS' harassment thresholds for these 
activities can be found in the activity-specific subsections below.
    As described previously, Park City Wind has also identified the 
potential need to detonate up to 10 UXOs/MECs during the first two 
years of construction. Park City Wind did not conduct independent 
acoustic and propagation modeling for this activity but instead relied 
on a publicly available modeling report prepared by JASCO for the 
Revolution Wind project (Hannay and Zykov, 2022) which is 
geographically adjacent to the Project area. The water depths 
considered in the acoustic modeling study (i.e., 12 m, 20 m, 30 m, 45 
m) are relevant to the Project areas that may require UXO/MEC 
detonation, although the export cable route for New England Wind comes 
to shore northeast of Cape Cod Island and not into Narragansett Bay, as 
was considered in the modeling study. The modeled SEL from Revolution 
Wind are mostly transferable to similar depth sites over the Project 
area, with the possible exception of the shallowest site (12 m) that is 
located in a constrained channel in Narragansett Bay with nearby 
islands blocking sound propagation in some directions. In addition, 
Park City Wind and NMFS acknowledge the bathymetry considered in the 
Revolution Wind UXO/MEC study slightly varies from the Project area; 
however, the effects to propagation are likely minimal. Moreover, Park 
City Wind would be required to conduct sound field verification during 
any UXO/MEC detonation and any subsequent detonations would be subject 
to mitigation dependent upon the results of that acoustic monitoring 
effort (e.g., changes to mitigation zone sizes may occur). Overall, the 
results from Hanney and Zykov (2022) are applicable to the Park City 
Wind project. The resulting distances to NMFS' harassment thresholds 
and estimate take from UXO/MEC detonation can be found in the UXO/MEC 
subsection below.
    To estimate the probability of exposure of animals to sound above 
NMFS' harassment thresholds during impact pile driving for 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. An individual animat's sound exposure levels are summed 
over a specific duration, (24 hours), to determine its total received 
acoustic energy (SEL) and maximum received PK and SPL. These received 
levels are then compared to the threshold criteria within each analysis 
period.
    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 number 
of predicted animat exposures by the species-specific density of 
animals in the area. By programming animats to behave like

[[Page 37650]]

marine species that may be present near the Project area, 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).
    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 CPA for each of the species-
specific animats during a simulation is recorded and then the CPA 
distance that accounts for 95 percent of the animats that exceed an 
acoustic impact threshold is determined. The ER95 
(95 percent exposure radial distance) is the horizontal distance that 
includes 95 percent of the CPAs of animats exceeding a given impact 
threshold. The ER95 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 
potential for PTS from impact pile driving.
    Park City Wind also calculated acoustic ranges which represent the 
distance to a harassment threshold based on sound propagation through 
the environment independent of any receiver. 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 use of acoustic ranges 
(R95) to the Level A harassment SELcum 
metric thresholds to assess the potential for PTS is considered an 
overly conservative method as it does not account for animal movement 
and behavior and therefore assumes that animals are essentially 
stationary at that distance for the entire duration of the pile 
installation, a scenario that does not reflect realistic animal 
behavior. The acoustic ranges to the SELcum Level A 
harassment thresholds for impact pile driving can be found in Park City 
Wind's ITA application but will not be discussed further in this 
analysis. However, because NMFS Level A harassment (PTS dBpeak) and 
Level B harassment (SPL) thresholds refer to instantaneous exposures, 
acoustic ranges are more relevant to the analysis. Also, because animat 
modeling was not conducted for vibratory pile driving or drilling, 
acoustic range is used to assess Level A harassment (dB SEL). Acoustic 
ranges to the Level A harassment (dB peak), Level A harassment (dB SEL; 
vibratory pile driving and drilling only), and Level B harassment 
threshold for each activity are provided in the WTG and ESP Foundation 
Installation subsection below. The differences between exposure ranges 
and acoustic ranges for Level B harassment are minimal given it is an 
instantaneous method.

Density and Occurrence

    In this section, we provide the information about marine mammal 
density, presence, and group dynamics that informed the take 
calculations for all activities. Park City Wind applied the 2022 Duke 
University Marine Geospatial Ecology Laboratory Habitat-based Marine 
Mammal Density Models for the U.S. Atlantic (Duke Model, Roberts et 
al., 2016; Roberts and Halpin, 2022) to estimate take from foundation 
installation, HRG surveys, and UXO/MEC detonations (please see each 
activity subsection below for the resulting densities). The models 
estimate absolute density (individuals/100 km\2\) by statistically 
correlating sightings reported on shipboard and aerial surveys with 
oceanographic conditions. For most marine mammal species, densities are 
provided on a monthly basis. Where monthly densities are not available 
(e.g., pilot whales), annual densities are provided. Moreover, some 
species are represented as guilds (e.g., seals (representing Phocidae 
spp., primarily comprised of harbor and gray seals), pilot whales 
(representing short-finned and long-finned pilot whales), and beaked 
whales (representing Mesoplodon spp.)).
    The Duke habitat-based density models delineate species' density 
into 5 x 5 km (3.1 x 3.1 mi) grid cells. Park City Wind calculated 
monthly densities for each species using grid cells within the lease 
area and a perimeter around the lease area that represented the 
expected ensonified area to NMFS' harassment thresholds for each sound-
producing activity. All 5 x 5 km grid cells in the models that fell 
partially or fully within the analysis polygon were considered in the 
calculations.
    For impact pile driving, the perimeter size from the edge of the 
lease area was selected as the largest 10 dB-attenuated (due to use of 
sound attenuation device(s)) exposure range calculated based on 
installation of a 12-m pile using a 6,000 kJ hammer (6.2 km). For 
vibratory pile driving and drilling, densities from grid cells within a 
50-km and 16.6-km perimeter (representing distances to the Level B 
harassment isopleths for each activity), respectively, were applied to 
the calculations. For UXO/MEC detonations, Park City Wind used the 
largest SEL-based TTS-onset acoustic ranges across all hearing groups 
and applied it to the moderate UXO/MEC risk areas, resulting in a 14.1-
km perimeter for the shallow water segment of the OECC and a 13.8-km 
density perimeter for the deep water segment of the OECC as well as the 
SWDA. For HRG surveys, Park City Wind applied all grid cells within the 
survey corridor. No buffer was applied given the small distance to 
Level B harassment (<200 m) during surveys compared to the grid cell 
size in the Duke density models (5 x 5 km).
    Densities were computed monthly for each species where monthly 
densities were available. For the pilot whale guild (i.e., long-finned 
and short-finned), monthly densities are unavailable so annual mean 
densities were used instead. Additionally, the models provide density 
for pilot whales as a guild that includes both species. To obtain 
density estimates for long-finned and short-finned pilot whales, the 
guild density was scaled by the relative stock sizes based on the best 
available abundance estimate from NOAA Fisheries SARs (NOAA Fisheries, 
2021b). Similarly, gray and harbor seal densities were scaled by each 
of their relative abundances, as found in the NOAA Fisheries SARs (NOAA 
Fisheries, 2021b). Although harp seals are not common in the project 
area, Park City Wind conservatively applied the resulting gray seal 
densities to harp seals. These scaled and surrogate densities were 
carried forward to the exposure and take estimates. Please see the 
activity-specific subsections below for resulting densities.
    The equation below, using pilot whales as an example, shows how 
abundance scaling is applied to compute density for pilot whales and 
seals.

Dshort-finned = Dboth x (Nshort-finned/(Nshort-finned + Nlong-finned))

    Where D represents density and N represents abundance.
    For some species and activities, AMAPPS data from 2010-2019 
shipboard distance sampling surveys (Palka et al., 2021) and 
observational data collected during previous site assessment surveys in 
the project area indicate that the density-based exposure estimates may 
be insufficient to account

[[Page 37651]]

for the number of individuals of a species that may be encountered 
during the planned activities. This is particularly true for uncommon 
or rare species with very low densities in the models. Hence, 
consideration of other data is required to ensure the potential for 
take is adequately assessed.
    For uncommon species, the predicted densities from the Duke models 
are very low and the resulting density-based exposure estimate is less 
than a single animal or a typical group size for the species. In such 
cases, the take request is based on the species' average group size 
(Table 14). The mean group sizes used to correct Level B take 
estimates, as shown in Table 14, for modeled cetacean species were 
derived from AMAPPS data from 2010-2019 NE shipboard distance sampling 
surveys (Palka et al., 2021) and informed by data from 2018-2021 HRG 
surveys conducted by the Proponent (Vineyard Wind, 2018, 2020a, 2020c, 
2021a). Mean group size was calculated as the number of individuals 
divided by the number of groups from Table 6-5 of Palka et al. (2021), 
which summarizes the 2010-2019 AMAPPS NE shipboard distance surveys. 
Summer sightings (June 1 to August 31) were chosen for these 
calculations because many species were not observed during fall 
surveys, and surveys were not conducted during spring or winter. When 
site assessment survey data showed a larger mean group size than was 
shown by the AMAPPS data, the site assessment survey group size was 
applied to take calculations.
    In cases where the exposure estimate was less than the mean group 
size, it was assumed that if one group member were to be exposed, then 
it is reasonable to expect that all animals in the same group could 
receive a similar level of sound exposure. Therefore, for species for 
which the annual number of predicted exposures above threshold was less 
than the mean group size, the annual number of expected takes was 
increased to the mean group size rounded up to the nearest integer. 
Correcting for group size for these species is used as a conservative 
measure to ensure all animals in a group are accounted for in the take 
request.
    As described previously, density-based exposure calculations were 
not conducted for species considered rare in the project area. There 
are few to zero sightings of these species in the sources used above to 
calculate group size for the modeled species, so an alternative method 
had to be developed. Group size calculations for rare species used 
sighting data from the Ocean Biodiversity Information System database 
(OBIS, 2021). All records for each of the rare species were extracted 
from the OBIS database and then filtered to include only the area from 
approximately Cape Hatteras to the Gulf of Maine (35[deg] N to 43[deg] 
N) and from the coast (76[deg] W) out to the continental shelf edge 
(66[deg] W) to provide a more precise estimate of potential group size 
in the SWDA than would be expected using all OBIS records. The OBIS 
data were further filtered to remove stranding data, because the group 
size of stranded animals does not necessarily reflect the group size of 
free-ranging animals. The one exception to this was the hooded seal--
all records of this species in this area from the OBIS database were of 
single, stranded individuals, and thus a group size of one was used. 
This number is likely reflective of any free-swimming hooded seal that 
would occur in the area because this is an Arctic species and only 
single vagrant animals would be expected. Finally, data from digital 
aerial surveys were filtered out of this larger dataset because, 
although useful in determining presence/absence, these data provide no 
information on group size. The ``individualCount'' variable in the OBIS 
data was used to calculate minimum, maximum, and average group sizes 
for these rare species (Table 16 in the ITA application).
    For many of these rare species, in particular the delphinids, 
maximum group sizes can be in the hundreds or even up to thousands of 
animals. However, because these animals are rare in the WEA as it is 
not their preferred habitat, Park City Wind assumed that they would be 
unlikely to form such large aggregations in this area. Thus, the 
average group size (rounded up to a whole number) was used in the take 
calculations for these species. Group sizes relevant to the SWDA can be 
informed by PSO sightings during site characterization surveys (Table 
15). For example, white-beaked dolphins were recorded in both 2019 and 
2020 during HRG surveys in this area (Vineyard Wind, 2019, 2020) with 
the sighting of white-beaked dolphins in 2019 consisting of 30 animals. 
Other rare species encountered in the survey area during previous HRG 
surveys include false killer whales in 2019 (5 individuals) and 2021 (1 
individual) (Vineyard Wind, 2020c, 2020b) and killer whales in 2022 (2 
individuals; data not yet submitted). For these species the take 
estimates use the observed group size from PSO sightings.
    Additional detail regarding the density and occurrence as well as 
the assumptions and methodology used to estimate take for specific 
activities is included in the activity-specific subsections below and 
in Section 6.1 of the ITA application. Average group sizes used in take 
estimates, where applicable, for all activities are provided in Tables 
14 and 15.

 Table 14--Average Marine Mammal Group Sizes Used for Common and Uncommon Species in Take Estimate Calculations
----------------------------------------------------------------------------------------------------------------
                                   Number of    Number of    Mean group                             Group size
                                     groups      animals        size       Mean group size (PSO    used in Level
             Species                (AMAPPS      (AMAPPS      (AMAPPS           data) \b\             B take
                                   data) \a\    data) \a\    data) \a\                            correction \c\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \d\..            2            4          2.0  1.5....................               2
Fin whale \d\...................          345          533          1.5  1.6....................               2
Humpback whale..................          157          370          2.4  1.5....................               3
Minke whale.....................           32           32          1.0  1.1....................               2
Sei whale \d\...................           20           28          1.4  1.0....................               2
Sperm whale \d\.................          298          491          1.6  1.3....................               2
Atlantic spotted dolphin........           60        1,760         29.3  Not observed...........              30
Atlantic white-sided dolphin....            3           61         20.3  27.5...................              28
Bottlenose dolphin, offshore....          345        3,865         11.2  17.9...................              18
Common dolphin..................          444       19,802         44.6  14.0...................              45
Long-finned pilot whale.........           41          666         16.2  5.6....................              17
Short-finned pilot whale........          230        2,050          8.9  Not observed...........               9
Risso's dolphin.................          486        3,131          6.4  Not observed...........               7

[[Page 37652]]

 
Harbor porpoise.................            4            6          1.5  1.3....................               2
Gray seal.......................          145          202          1.4  1.2....................               2
Harbor seal.....................          145          202          1.4  2.0....................               2
Harp seal.......................          145          202          1.4  Not observed...........               2
----------------------------------------------------------------------------------------------------------------
\a\ Mean group size for cetaceans from 2010-2019 AMAPPS NE shipboard distance sampling surveys (Table 6-5 of
  Palka et al. (2021)), and for seals from 2010-2013 AMAPPS NE aerial surveys for all seals because most were
  not identified to species (Table 19.1 of Palka et al. (2017)).
\b\ Mean group size from 2018-2021 PSO sightings data from 2018-2021 HRG surveys conducted by the Proponent
  (Vineyard Wind, 2018, 2020a, 2020c, 2021a). Highlighted blue cells show values that were higher for PSO data
  than for AMAPPS data.
\c\ Group size used for Level B take correction is higher of AMAPPS data and PSO data rounded up to an integer.
\d\ Listed as Endangered under the ESA.


         Table 15--Average Marine Mammal Group Sizes Used for Rare Species in Take Estimate Calculations
----------------------------------------------------------------------------------------------------------------
                                           Minimum      Maximum                  Observed group     Group size
                Species                   group size   group size   Mean group      size (PSO      used in take
                                            (OBIS)       (OBIS)    size (OBIS)      reports)         estimates
----------------------------------------------------------------------------------------------------------------
Blue whale \a\.........................            1            2          1.0                NA               1
Dwarf sperm whale......................            1            5          1.7                NA               2
Pygmy sperm whale......................            1            3          1.3                NA               2
Cuvier's beaked whale..................            1           10          2.8                NA               3
Blainville's beaked whale..............            3            4          3.3                NA               4
Gervais' beaked whale..................            1           12          3.5                NA               4
Sowerby's beaked whale.................            1           10          3.5                NA               4
True's beaked whale....................            2            5          2.9                NA               3
Northern bottlenose whale..............            2            7          3.7                NA               4
Clymene dolphin........................            2        1,000        166.8                NA             167
False killer whale \b\.................            1           30          6.3                 5               5
Fraser's dolphin.......................           75          250        191.7                NA             192
Killer whale \b\.......................            1           40          7.3                 2               2
Melon-headed whale.....................           20          210        108.8                NA             109
Pan-tropical spotted dolphin...........            3          300         59.3                NA              60
Pygmy killer whale.....................            2           10          4.5                NA               5
Rough-toothed dolphin..................            3           45         13.1                NA              14
Spinner dolphin........................            1          170         50.4                NA              51
Striped dolphin........................            1          500         63.8                NA              64
White-beaked dolphin \b\...............            1          200         13.5                30              30
Hooded seal \c\........................            1            1          1.0                NA               1
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the ESA.
\b\ Mean group size for these species from 2018-2021 PSO sightings data from 2018-2021 HRG surveys conducted by
  the Proponent (Vineyard Wind, 2018, 2020a, 2020c, 2021a).
\c\ All records of hooded seals in the OBIS database for this region were strandings of single animals.

WTG and ESP Foundation Installation

    Here, we describe the results from the acoustic, exposure, and take 
estimate methodologies outlined above for WTG and ESP installation 
activities that have the potential to result in harassment of marine 
mammals: pile driving and drilling. We present exposure ranges to Level 
A harassment (SEL) from impact driving and acoustic ranges to Level A 
harassment and Level B harassment thresholds, densities, exposure 
estimates and take estimates following the aforementioned assumptions 
(e.g., construction and hammer schedules).
    As previously described, JASCO integrated the results from acoustic 
source and propagation modeling into an animal movement model to 
calculate exposure ranges for 17 marine mammal species considered 
common in the project area. The resulting ranges represent the 
distances at which marine mammals may incur Level A harassment (i.e., 
PTS). The exposure ranges also influence the development of mitigation 
and harassment zone sizes. While the first year of Schedule A includes 
the potential installation of 13-m monopiles using a 6,000 kJ hammer, 
this specific configuration was not modeled beyond acoustic source 
modeling because initial source modeling showed minimal difference 
between the 12-m and 13-m monopiles. Therefore, Park City Wind modeled 
the 12-m monopile with 6,000 kJ hammer energy which was assumed to be a 
reasonable replacement in exposure calculations. Park City Wind assumed 
that all Phase 2 foundations are jackets as their modeling results 
found that jacket foundations are the most impactful in terms of the 
Level A cumulative sound exposure metric. Thus, the assumption of all 
jacket foundations provide an envelope for an up to 13-m monopile 
installed with a 5,000 or 6,000 kJ hammer. Table 16 provides exposure 
ranges for impact pile driving 12-m and 13-m monopiles and jacket 
foundations, assuming 10 dB attenuation (also see Tables 21-27 in Park 
City Wind's ITA application).

[[Page 37653]]



  Table 16--Exposure Ranges (ER95%, km) to Marine Mammal Level A Harassment (SEL) Thresholds During Impact Pile
                Driving 12-m and 13-m Monopiles and 4-m Pin Piles, Assuming 10 dB Attenuation \1\
----------------------------------------------------------------------------------------------------------------
                                               12-m monopile                       13-m monopile        4-m pin
                             ------------------------------------------------------------------------    piles
                               5,000 kJ hammer (km)    6,000 kJ hammer (km)    5,000 kJ hammer (km)  -----------
                             ------------------------------------------------------------------------  3,500 kJ
    Marine mammal species                                                                               hammer
                                                                                                         (km)
                               one pile/  two piles/   one pile/  two piles/   one pile/  two piles/ -----------
                                  day         day         day         day         day         day     four piles/
                                                                                                          day
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale..        1.84        2.34        2.93        3.16        2.26        2.53        2.54
Fin whale...................        2.37        2.79        3.31        3.90        2.56        3.14        4.07
Humpback whale..............        2.76        3.44        3.81        4.62        2.87        3.66        4.49
Minke whale.................        1.50        1.67        2.40        2.59        1.50        1.65        1.83
Sei whale...................        1.95        2.04        2.47        3.08        1.66        2.31        2.84
Sperm whale.................           0           0           0           0           0           0       <0.01
Atlantic spotted dolphin....           0           0           0           0           0           0           0
Atlantic white sided dolphin           0           0           0           0           0           0        0.01
Bottlenose dolphin..........           0           0           0           0           0           0        0.01
Common dolphin..............           0           0           0           0           0           0       <0.01
Long-finned pilot whale.....           0           0           0           0           0           0       <0.01
Short-finned pilot whale....       <0.01           0       <0.01           0           0           0           0
Risso's dolphin.............           0       <0.01        0.02       <0.01       <0.01       <0.01        0.01
Harbor porpoise.............        1.55        1.60        2.26        2.30        1.51        1.50        1.77
Gray seal...................        0.51        0.56        0.84        1.01        0.59        0.57        1.31
Harbor seal.................        0.21        0.21        0.43        0.63        0.16        0.19        0.32
Harp seal...................        0.15        0.31        0.25        0.41        0.09        0.32        0.28
----------------------------------------------------------------------------------------------------------------
\1\ The exposure ranges presented here represent the assumption that the pile would be fully installed with an
  impact hammer. Hence, for piles that are set with a vibratory hammer, these distances can be considered an
  overestimate since fewer strikes would be required to install the pile. Park City Wind estimates approximately
  70 of the 132 foundations installed would require use of a vibratory hammer to set the pile.

    As described above, JASCO also calculated acoustic ranges which 
represent distances to NMFS' harassment isopleths independent of 
movement of a receiver. Acoustic ranges are a better representation of 
distances to NMFS' instantaneous harassment thresholds (i.e., PTS dB 
peak, and Level B harassment) and can also be used for PTS dB SEL when 
animal movement modeling is not conducted. As described previously, the 
distances to the PTS dB SEL threshold are likely an overestimate as it 
assumes an animal remains at the distance for the entire duration of 
pile driving. Presented below are the distances to the PTS (dB peak) 
threshold for impact pile driving, PTS (dB peak and dB SEL) for 
vibratory pile driving and drilling, and Level B harassment (SPL) 
thresholds for all installation methods during WTG and ESP foundation 
installation. Table 17 identifies the inputs Park City Wind applied to 
the User Spreadsheet. Full details on the inputs into the User 
Spreadsheet can also be found in Appendix B and C in Park City Wind's 
Application Update Report.

                                     Table 17--NMFS User Spreadsheet Inputs
----------------------------------------------------------------------------------------------------------------
                                                         Source A                        Source B
              Spreadsheet tab used              ----------------------------------------------------------------
                                                  Vibratory pile driving                 Drilling
----------------------------------------------------------------------------------------------------------------
Source Level (Single Strike/shot SEL/rms)......                      188  183.3 dB SPL.
Weighting Factor Adjustment (kHz)..............                      2.5  2.5.
(a) Number of strikes in 1 h...................                      n/a  n/a.
(b) Number of piles per day....................                        2  n/a.
(c) Activity Duration (h) within 24-h period...                       24  24.
Propagation (xLogR)............................                       15  15.
Distance of source level measurement (m).......                       10  10.
----------------------------------------------------------------------------------------------------------------

    Acoustic ranges to the Level A harassment threshold and Level B 
harassment thresholds are in Tables 18 and 19, respectively. Mean 
monthly density estimates for pile driving and drilling, in 
consideration of the applicable perimeter for each type, are provided 
in Tables 20, 21, and 22 below.

[[Page 37654]]



                               Table 18--Acoustic Ranges, in Meters, to Level A Harassment Thresholds During Pile Driving and Drilling, Assuming 10 dB Attenuation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                        Distances to Level A harassment thresholds (m)
                                                                                             ---------------------------------------------------------------------------------------------------
                                                             Hammer                            Low-frequency cetacean   Mid-frequency cetacean       High-frequency              Phocids
           Pile installed                Install method      energy      Activity duration   --------------------------------------------------        cetaceans        ------------------------
                                                              (kJ)           (minutes)                                                         -------------------------
                                                                                               219 Lp,pk  199 LE,24hr   230 Lp,pk  198 LE,24hr   202 Lp,pk  173 LE,24hr   218 Lp,pk  201 LE,24hr
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Drilling............................  Drilling............       N/A  1,440 (24 hours)......         7.4        174.3  ..........         15.4  ..........        257.7  ..........        105.9
12-m................................  Impact..............     5,000  n/a...................          11  ...........           3  ...........         230  ...........          14  ...........
12-m................................  Impact..............     6,000  n/a...................          11  ...........           3  ...........         230  ...........          14  ...........
13-m................................  Impact..............     5,000  n/a...................          14  ...........           5  ...........         290  ...........          16  ...........
4-m.................................  Impact..............     3,500  n/a...................           2  ...........  ..........  ...........         139  ...........           2  ...........
13-m................................  Vibratory...........       N/A  60....................        18.4        430.9  ..........         38.2  ..........        637.1  ..........        261.9
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 19--Acoustic Ranges (R95%), in Meters, to Level B Harassment Thresholds During Pile Driving and Drilling,
                                           Assuming 10 dB Attenuation
----------------------------------------------------------------------------------------------------------------
                                                                                             Distance to Level B
             Pile installed                     Install method         Hammer energy (kJ)      harassment (km)
----------------------------------------------------------------------------------------------------------------
Drilling................................  Drilling..................                   N/A                  16.6
12-m....................................  Impact....................                 5,000                  4.24
12-m....................................  Impact....................                 6,000                  5.83
13-m....................................  Impact....................                 5,000                  4.64
4-m.....................................  Impact....................                 3,500                  3.64
13-m....................................  Vibratory.................                   N/A                    50
----------------------------------------------------------------------------------------------------------------


                    Table 20--Mean Monthly Marine Mammal Density Estimates (Animals/100 km\2\) for Impact Pile Driving Considering a 6.2-km Buffer Around the Lease Area \a\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                 Annual  May-Dec
                              Species                                 Jan      Feb      Mar      Apr      May      Jun      July     Aug      Sep      Oct      Nov      Dec      mean     mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\....................................    0.356    0.427    0.431    0.459    0.289    0.048    0.021    0.018    0.027     0.05    0.062    0.174    0.197    0.086
Fin whale \b\.....................................................    0.212    0.168    0.106    0.163     0.27    0.249    0.443     0.37    0.234    0.057     0.05    0.138    0.205    0.226
Humpback whale....................................................     0.03    0.022    0.042     0.15    0.298    0.314    0.175     0.12    0.167    0.243    0.191    0.028    0.148    0.192
Minke whale.......................................................    0.108    0.134    0.132    0.798    1.717     1.63    0.689    0.468    0.529    0.474    0.051    0.073    0.567    0.704
Sei whale \b\.....................................................    0.039    0.021    0.044    0.111    0.194    0.053    0.013    0.011    0.019    0.037    0.079    0.063    0.057    0.059
Sperm whale \b\...................................................    0.031    0.012    0.013    0.003    0.013    0.029    0.039    0.109    0.066    0.063    0.031    0.021    0.036    0.046
Atlantic spotted dolphin..........................................    0.001        0    0.001    0.003    0.017    0.024    0.031    0.055    0.281    0.425    0.185    0.019    0.087     0.13
Atlantic white-sided dolphin......................................    2.093    1.248    0.853    1.315    3.362    3.041    1.392    0.728    1.655    2.486    1.786    2.473    1.869    2.115
Bottlenose dolphin, offshore......................................    0.515    0.113     0.06    0.158    0.832     1.39     1.51    1.702    1.511     1.36    1.278    1.141    0.964    1.341
Common dolphin....................................................    7.365    2.509    1.896    3.288    6.357   14.269   10.568   14.668   26.713   23.434   11.174   10.937   11.098   14.765
Long-finned pilot whale \c\.......................................    0.142    0.142    0.142    0.142    0.142    0.142    0.142    0.142    0.142    0.142    0.142    0.142    0.142    0.142
Short-finned pilot whale \c\......................................    0.105    0.105    0.105    0.105    0.105    0.105    0.105    0.105    0.105    0.105    0.105    0.105    0.105    0.105
Risso's dolphin...................................................    0.044    0.004    0.002    0.018    0.097    0.047    0.067    0.126    0.156    0.085    0.122    0.183    0.079    0.111
Harbor porpoise...................................................   10.065   10.857   10.353    8.936    6.826    0.895    0.804    0.776    0.919    1.225    1.373    5.683    4.893    2.313
Gray seal \d\.....................................................    5.756    6.123    4.627    3.434    5.122    0.757    0.076    0.083    0.214    0.505    1.844    5.002    2.795      1.7
Harbor seal \d\...................................................   12.932   13.758   10.395    7.714   11.507      1.7    0.171    0.186    0.482    1.134    4.143   11.237     6.28     3.82
Harp seal \d\.....................................................    5.756    6.123    4.627    3.434    5.122    0.757    0.076    0.083    0.214    0.505    1.844    5.002    2.795      1.7
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts and Halpin, 2022).
\b\ Listed as Endangered under the ESA.
\c\ Long- and short-finned pilot whale densities are the annual pilot whale guild density scaled by their relative abundances.
\d\ Gray and harbor seal densities are the seals guild density scaled by their relative abundances; gray seals are used as a surrogate for harp seals.


                  Table 21--Mean Monthly Marine Mammal Density Estimates (Animals/100 km\2\) for Vibratory Pile Driving Considering a 50-km Perimeter Around the Lease Area \a\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                 Annual  May-Dec
                              Species                                 Jan      Feb      Mar      Apr      May      Jun      July     Aug      Sep      Oct      Nov      Dec      mean     mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\....................................    0.542    0.649    0.566    0.507    0.316     0.08    0.051    0.031    0.043    0.054    0.113     0.34    0.274    0.129
Fin whale \b\.....................................................    0.196    0.159    0.138    0.168    0.259    0.247     0.39    0.322    0.243    0.088    0.059     0.13      0.2    0.217
Humpback whale....................................................    0.037     0.03    0.044    0.165    0.273    0.301    0.161    0.099    0.129    0.185    0.168     0.04    0.136    0.169
Minke whale.......................................................    0.106    0.121    0.137    0.666    1.343    1.213    0.524    0.319    0.357    0.393    0.051    0.079    0.442    0.535
Sei whale \b\.....................................................    0.031    0.023    0.044    0.121    0.181    0.058    0.016    0.009    0.015    0.034    0.076    0.059    0.056    0.056
Sperm whale \b\...................................................    0.031    0.018    0.017    0.004    0.014    0.029    0.039    0.111    0.054     0.04    0.029    0.027    0.035    0.043
Atlantic spotted dolphin..........................................    0.002        0    0.001    0.005    0.067    0.164    0.049     0.08    0.432    0.948    0.228    0.026    0.167    0.249
Atlantic white-sided dolphin......................................    2.383    1.677    1.143    1.607    3.174    3.324    1.463    0.533    1.311    2.197     1.74    2.434    1.916    2.022
Bottlenose dolphin, offshore......................................    0.666    0.208    0.121    0.276    1.081      1.8    1.871    1.902     1.94    1.896    1.825    1.421    1.251    1.717
Common dolphin....................................................    9.886    4.821    3.803    5.177    8.627   17.737   12.807   14.696    22.88   29.545   17.768   14.652   13.533   17.339
Long-finned pilot whale \c\.......................................    0.165    0.165    0.165    0.165    0.165    0.165    0.165    0.165    0.165    0.165    0.165    0.165    0.165    0.165

[[Page 37655]]

 
Short-finned pilot whale \c\......................................    0.122    0.122    0.122    0.122    0.122    0.122    0.122    0.122    0.122    0.122    0.122    0.122    0.122    0.122
Risso's dolphin...................................................    0.102    0.021    0.008    0.038    0.214    0.207    0.272    0.446    0.587    0.294    0.182    0.215    0.215    0.302
Harbor porpoise...................................................    7.134    7.874     7.54    6.884    4.851    1.409    1.315    1.002    0.851    1.137    1.376    4.459    3.819     2.05
Gray seal \d\.....................................................    5.859     5.46    4.518    4.932    7.239    5.389     1.57      1.3    1.512    2.863    3.463     5.24    4.112    3.572
Harbor seal \d\...................................................   13.164   12.268    10.15   11.081   16.265   12.108    3.528    2.921    3.397    6.432    7.781   11.773    9.239    8.026
Harp seal \d\.....................................................    5.859     5.46    4.518    4.932    7.239    5.389     1.57      1.3    1.512    2.863    3.463     5.24    4.112    3.572
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts and Halpin, 2022).
\b\ Listed as Endangered under the ESA.
\c\ Long- and short-finned pilot whale densities are the annual pilot whale guild density scaled by their relative abundances.
\d\ Gray and harbor seal densities are the seals guild density scaled by their relative abundances; gray seals are used as a surrogate for harp seals.


                        Table 22--Mean Monthly Marine Mammal Density Estimates (Animals/100 km\2\) for Drilling Considering a 16.6-km Perimeter Around the Lease Area \a\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                 Annual  May-Dec
                              Species                                 Jan      Feb      Mar      Apr      May      Jun      July     Aug      Sep      Oct      Nov      Dec      mean     mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\....................................    0.419    0.497     0.48    0.484     0.29     0.05    0.023    0.019    0.029    0.052    0.076    0.227    0.221    0.096
Fin whale \b\.....................................................    0.216    0.164    0.111    0.164    0.274     0.26    0.421    0.342    0.222     0.06    0.053    0.142    0.203    0.222
Humpback whale....................................................    0.032    0.025    0.043    0.147    0.284    0.297    0.166    0.116     0.16    0.222    0.184    0.032    0.142    0.183
Minke whale.......................................................    0.118    0.141    0.141    0.807    1.706    1.594    0.683    0.448    0.484    0.453    0.054    0.082    0.559    0.688
Sei whale \b\.....................................................    0.038    0.022    0.045    0.114    0.191    0.052    0.013     0.01    0.018    0.036     0.08    0.067    0.057    0.059
Sperm whale \b\...................................................    0.031    0.012    0.013    0.003    0.014    0.027    0.038    0.116    0.068     0.05    0.031    0.021    0.035    0.046
Atlantic spotted dolphin..........................................    0.001        0    0.001    0.003     0.02    0.029    0.032    0.054     0.27     0.48    0.178    0.019     0.09    0.135
Atlantic white-sided dolphin......................................     2.04    1.251    0.872    1.339    3.281    3.002    1.396    0.709    1.629     2.36    1.786    2.411     1.84    2.072
Bottlenose dolphin, offshore......................................     0.48    0.112    0.061    0.161    0.813    1.356     1.47    1.633    1.488    1.353    1.268    1.076    0.939    1.307
Common dolphin....................................................     7.13    2.538    1.988    3.375     6.36   13.828   10.656   14.298    24.73   23.023     11.7   11.063   10.891   14.457
Long-finned pilot whale \c\.......................................    0.139    0.139    0.139    0.139    0.139    0.139    0.139    0.139    0.139    0.139    0.139    0.139    0.139    0.139
Short-finned pilot whale \c\......................................    0.102    0.102    0.102    0.102    0.102    0.102    0.102    0.102    0.102    0.102    0.102    0.102    0.102    0.102
Risso's dolphin...................................................    0.045    0.004    0.002    0.019    0.101    0.054    0.075    0.141    0.177    0.097    0.123    0.177    0.085    0.118
Harbor porpoise...................................................    9.722     10.5    9.999    8.702    6.457    1.041    0.988     0.95    1.043    1.274    1.435    5.798    4.826    2.373
Gray seal \d\.....................................................    6.084    6.137    4.495     3.63    5.259    1.171    0.151    0.154    0.327    0.655    2.078    4.937    2.923    1.842
Harbor seal \d\...................................................    13.67   13.788   10.099    8.157   11.816     2.63     0.34    0.346    0.736    1.472     4.67   11.091    6.568    4.138
Harp seal \d\.....................................................    6.084    6.137    4.495     3.63    5.259    1.171    0.151    0.154    0.327    0.655    2.078    4.937    2.923    1.842
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Density estimates are calculated from the 2022 Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016; Roberts and Halpin, 2022).
\b\ Listed as Endangered under the ESA.
\c\ Long- and short-finned pilot whale densities are the annual pilot whale guild density scaled by their relative abundances.
\d\ Gray and harbor seal densities are the seals guild density scaled by their relative abundances; gray seals are used as a surrogate for harp seals.

    To estimate take from foundation installation activities, Park City 
Wind used two pile installation construction schedules (Table 2 above; 
also see Tables 2 and 3 in Application Update Report). Overall, 
Construction Schedule A (Schedule A) assumes 52 days of foundation 
installation activities would occur between May and December in 2026 
(Year 2) to install 89 monopiles and 2 jacket foundations and 35 days 
of foundation installation activities would occur in 2027 (Year 3) to 
install 18 monopiles and 24 jacket foundations. As previously 
described, Park City accounted for 133 piles to be installed in its 
modeling despite a maximum of 132 foundations actually being installed. 
In total, based on Schedule A, 87 days of foundation installation 
activities would occur over 2 years to complete the Project. 
Construction Schedule B (Schedule B) assumes 38 days of foundation 
installation activities would occur between May and December in 2026 
(Year 2) to install 55 monopiles and 3 jacket foundations, 53 days of 
foundation installation activities would occur in 2027 (Year 3) to 
install 53 jackets, and 22 days of foundation installation activities 
would occur in 2028 (Year 4) to install 22 jackets. In total, based on 
Schedule B, 113 days of foundation installation activities would occur 
over 3 years to complete the Project.
    Due to the extended duration of Schedule B, the total amount of 
Level B harassment from foundation installation activities is greater 
than Schedule A over the 5-year effective period of the proposed rule. 
The total 5-year take by Level B harassment in this proposed rule is 
therefore generated based on Schedule B. However, annual take estimates 
assume the yearly worst case scenario exposures for each species for 
each year from either Construction Schedule A or B. That is, annual 
take by Level B harassment due to foundation installation activities 
may use either Schedule A or B, whichever was more. As previously 
described, Park City accounted for 133 piles to be installed in its 
modeling despite a maximum of 132 foundations actually being installed 
to complete the Project.
    Park City Wind considered three foundation installation techniques 
when estimating take: impact pile driving, vibratory pile driving (to 
set the pile), and drilling (to break up any obstacles should the pile 
encounter obstructions). Of these, Level A harassment (PTS) has the 
potential to occur from impact pile driving only. As shown in Table 18, 
vibratory pile driving and drilling produce very small Level A 
harassment zone sizes that consider static receivers over the duration 
of the time period considered in the model (e.g., a harbor porpoise 
would have to remain at 637 m from the pile for 24-hours). For 
vibratory pile driving, the duration considered was relatively short 
(60 minutes); however, this represents vibratory driving over two piles 
in which there are several hours in between events and the resulting 
distances are comparatively small (e.g., 460 m for low-frequency 
cetaceans (i.e.,

[[Page 37656]]

baleen whales)). Moreover, the implementation of clearance and shut 
down zones would further reduce the potential for PTS from these 
activities. For these reasons, Park City Wind has concluded, and NMFS 
agrees, the potential for PTS to occur from vibratory pile driving or 
drilling is discountable. For this reason, Park City Wind carried 
forward the PTS exposure estimates from impact pile driving and no take 
by Level A harassment was considered for vibratory pile driving or 
drilling. The maximum take by Level A harassment proposed for 
authorization from the foundation activities (i.e., impact pile 
driving) is in Table 23.
    To estimate the amount of Level B (behavioral) harassment that may 
occur incidental to foundation installation, Park City Wind considered 
all three installation methods. As described above, Park City Wind 
conducted exposure modeling to estimate the number of exposures that 
may occur from impact pile driving. The results of the exposure 
modeling and amount of take Park City Wind requested from this activity 
is provided in sections 3 and 4 of the Application Update Report. 
Separately, Park City Wind applied a more traditional approach to 
estimate take from vibratory driving and drilling wherein:

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

    As shown in Tables 20 and 21, densities for vibratory pile driving 
and drilling were calculated on a monthly basis. Park City Wind then 
considered the number of days either activity would occur per month and 
per schedule (see Tables 2 and 3 in Application Update Report). Take 
was estimated for each activity independent of each other. That is, 
Park City Wind calculated take for vibratory driving 70 foundations 
over 45 days for Schedule A and 54 days for Schedule B. The resulting 
monthly and annual take can be found in Tables 18-20 of Park City 
Wind's Application Update Report. Separately, Park City Wind calculated 
take considering drilling for 48 foundations over 48 days for both 
Schedule A and Schedule B. The resulting monthly and annual take can be 
found in Tables 21-23 of Park City Wind's Application Update Report.
    To avoid overestimating take, the amount of take derived when 
considering impact driving, vibratory driving, and drilling 
independently were not summed to produce the amount of annual take Park 
City Wind requested. Instead, Park City Wind appropriately deducted the 
take from drilling when vibratory pile driving and drilling would occur 
on the same day. This is because the area for vibratory pile driving is 
much larger than drilling (50 km vs 16.6 km) and the amount of take 
estimated for vibratory pile driving adequately covers potential take 
from drilling activities. However, because take from impact pile 
driving was modeled based on the number of piles while vibratory/
drilling takes were based on the number of days of activity, Park City 
Wind added the take estimates from impact pile driving all piles to the 
take estimates from vibratory pile driving/drilling (with the 
appropriate discounting) to produce their annual and total take 
requests. However, this is an overestimate of take as impact and 
vibratory and/or drilling could occur on the same day. That is, via 
this method, the amount of take requested represents take associated 
with more than 132 foundations. Hence, NMFS has reduced the amount of 
take, by Level B harassment, proposed for authorization.
    The amount of Level B harassment take NMFS proposes to authorize 
represents the amount of take from impact driving on days when only 
impact driving could occur plus the amount of take from vibratory or 
drilling on the days that either of those activities could occur to 
avoid double counting. We were able to reduce the amount of take from 
impact pile driving by reducing the amount proportional to the 
percentage of days when only impact pile driving would occur. For 
example, Park City Wind identified that impact pile driving would occur 
over 52 days in Year 2 (2026) according to Schedule A. However, Park 
City Wind has predicted that only 7 of those 52 days (approximately 13 
percent) would contain impact pile driving only (i.e., no vibratory 
pile driving and/or drilling). Hence, for Year 2 (2026) Schedule A, 
NMFS only included 13 percent of the estimated impact pile driving 
exposures calculated. As an example, Park City Wind estimated 9 
exposures of fin whales in Year 2 (2026), Schedule A from impact pile 
driving. NMFS carried forward 2 (13 percent of 9) exposures into the 
take estimates from foundation installation.
    Table 24 provides the annual take by Level B harassment calculated 
using this method from impact pile driving for both Schedule A and, 
separately, Schedule B. Table 25 identifies the amount of take for 
vibratory pile driving and drilling foundation installation activities 
after removing drilling takes when drilling would occur on the same day 
as vibratory pile driving (to avoid double counting). The annual take 
amounts represent the highest value between both Schedule A and 
Schedule B while the maximum 3-year take estimates represent the sum of 
take calculated for each year in Schedule B. NMFS retained Park City 
Wind's request for Level A harassment from all impact pile driving 
activities as no Level A harassment from vibratory pile driving or 
drilling is anticipated (Table 23). Table 26 identifies the amount of 
take for all foundation installation activities combined (i.e., the sum 
of Tables 23 through 26) that was carried forward in the take tables 
for this proposed rule.

   Table 23--Highest Annual Exposure Estimates and Annual Amount of Take Proposed for Authorization by Level A
   Harassment From Impact Pile Driving Associated With WTG and ESP Total Installation Events for Construction
                              Schedule A and B, Assuming 10 dB of Noise Attenuation
----------------------------------------------------------------------------------------------------------------
                                          Year 2 (2026)             Year 3 (2027)             Year 4 (2028)
                                   -----------------------------------------------------------------------------
              Species                              Proposed                  Proposed                  Proposed
                                     Exposures      takes      Exposures      takes      Exposures      takes
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale a b....         1.94            0          3.6            0         1.68            0
Fin whale \a\.....................         8.95            9        19.97           20         8.13            9
Humpback whale....................         8.11            9         15.9           16         6.85            7
Minke whale.......................        30.92           31        84.14           85         37.2           38
Sei whale \a\.....................         0.95            1         1.88            2         0.91            1
Sperm whale \a\...................        <0.01            1        <0.01            1        <0.01            1
Atlantic spotted dolphin \c\......            0            0            0            0            0            0
Atlantic white sided dolphin......         0.01            1         0.21            1         0.09            1
Bottlenose dolphin, offshore......         0.01            1          0.2            1         0.08            1
Common dolphin....................         0.17            8         2.18            3         0.94            1

[[Page 37657]]

 
Long-finned pilot whale \d\.......        <0.01            1         0.03            1         0.01            1
Short-finned pilot whale..........        <0.01            1        <0.01            1            0            0
Risso's dolphin...................         0.04            1         0.04            1         0.02            1
Harbor porpoise...................        70.65           71       135.47          136        59.89           60
Gray seal.........................         1.09            2         2.43            3         1.13            2
Harbor seal.......................         2.51            3         6.82            7         3.17            4
Harp seal.........................         1.05            2         2.13            3         0.99            1
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the ESA.
\b\ Level A harassment exposures were estimated for this species, but due to mitigation measures, no Level A
  harassment takes are expected or requested.


  Table 24--Annual and Total Amount of Take, by Level B Harassment, Proposed for Authorization From Impact Pile
 Driving Associated With WTG and ESP Total Installation Events for Construction Schedule A and B, Assuming 10 dB
                                              of Noise Attenuation
----------------------------------------------------------------------------------------------------------------
                                           Schedule A                             Schedule B
                                   -----------------------------------------------------------------------------
                                                                                                      Maximum 3-
              Species                                                                                 year total
                                       Year 2       Year 3       Year 2       Year 3       Year 4       take,
                                       (2026)       (2027)       (2026)       (2027)       (2028)     Schedule B
                                                                                                         \b\
----------------------------------------------------------------------------------------------------------------
Fin whale \a\.....................         2.29         1.49         2.39         3.94         2.18         8.52
Minke whale.......................        12.79        10.63        14.74        40.89        23.72        79.35
Humpback whale....................         1.62         1.14         1.66         2.91         1.64         6.20
North Atlantic right whale \a\....         0.67         0.57         0.74         1.25         0.82         2.80
Sei whale \a\.....................         0.40         0.34         0.37         0.62         0.55         1.54
Atlantic white sided dolphin......        36.21        32.46        35.55        97.96        55.63       189.14
Atlantic spotted dolphin..........         4.04         3.43         5.53         6.23         8.18        19.93
Common dolphin....................       495.87       497.78       425.69     1,381.64       783.74     2,591.07
Bottlenose dolphin, offshore......        19.52        18.29        18.42        59.98        32.45       110.85
Risso's dolphin...................         1.48         1.26         1.29         3.11         1.91         6.31
Long-finned pilot whale...........         2.56         2.29         3.13         6.85         4.64        14.62
Short-finned pilot whale..........         1.88         1.71         1.66         5.19         3.00         9.85
Sperm whale \a\...................         0.67         0.57         0.55         1.45         0.82         2.82
Harbor porpoise...................        28.00        25.60        25.05        61.64        35.72       122.42
Gray seal.........................         6.86         4.80         5.53         4.36         2.73        12.61
Harbor seal.......................        16.29        13.14        14.18        20.55        12.54        47.27
Harp seal.........................         7.94         6.40         7.00         9.34         5.73        22.07
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the ESA.
\b\ As construction schedule B has the highest total take by Level B harassment for impact pile driving, this
  column represents the sum of the Schedule B take numbers only and not the sum of the preceding columns within
  this table.


   Table 25--Maximum Annual and 3-Year Vibratory Pile Driving and Drilling Estimated Take Between Construction
                  Schedule A and B, by Level B Harassment, Assuming 10 dB of Noise Attenuation
----------------------------------------------------------------------------------------------------------------
                                                                                                  Maximum 3-year
                     Species                       Year 2 (2026)   Year 3 (2027)   Year 4 (2028)  take, Schedule
                                                        \b\                             \c\            B \d\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\..................              92             103              47             236
Fin whale \a\...................................             470             567             202           1,210
Humpback whale..................................             285             324             139             726
Minke whale.....................................             878             988             449           2,256
Sei whale \a\...................................              47              50              27             119
Sperm whale \a\.................................             111             137              41             277
Atlantic spotted dolphin........................             491             624             178           1,231
Atlantic white-sided dolphin....................           2,716           3,037           1,373           6,927
Bottlenose dolphin, offshore....................           3,269           3,931           1,404           8,419
Common dolphin..................................          32,787          39,645          13,437          82,661
Long-finned pilot whale.........................             291             345             126             743
Short-finned pilot whale........................             215             255              93             547
Risso's dolphin.................................             622             798             235           1,612
Harbor porpoise.................................           2,078           2,366             959           5,268
Gray seal.......................................           3,587           4,170           1,986           9,683

[[Page 37658]]

 
Harbor seal.....................................           8,058           9,366           4,462          21,755
Harp seal.......................................           3,587            4170           1,986           9,683
----------------------------------------------------------------------------------------------------------------
\a\ Listed as Endangered under the ESA.
\b\ Year 2 is from Construction Schedule A.
\c\ Year 4 is from Construction Schedule B only, there is no third year of foundation installation under
  Schedule A.
\d\ As construction Schedule B has the highest total take by Level B harassment for vibratory or drilling, the
  ``all years combined'' is the sum of the Schedule B take numbers and not the sum of the preceding columns
  within this table.


  Table 26--Takes Proposed for Authorization for All Foundation Installation Activities Combined, per Year, Carried Forward to the Total Take Estimates
                                                               Considering All Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Year 2 (2026)                 Year 3 (2027)                 Year 4 (2028)
                                                               -----------------------------------------------------------------------------------------
                            Species                                              Level B                       Level B                       Level B
                                                                  Level A     harassment a c    Level A     harassment b d    Level A     harassment b d
                                                                 harassment         e          harassment         f          harassment         f
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale....................................        \a\ 0               93        \b\ 0              104        \b\ 0               48
Fin whale.....................................................        \a\ 9              472       \b\ 20              571        \b\ 9              204
Humpback whale................................................        \a\ 9              287       \b\ 16              327        \b\ 7              141
Minke whale...................................................       \a\ 31        b c e 893       \b\ 85             1029       \b\ 38              473
Sei whale.....................................................        \a\ 1               47        \b\ 2               51        \b\ 1               48
Sperm whale...................................................        \a\ 1              112        \b\ 1              138        \b\ 1               42
Atlantic spotted dolphin......................................        \a\ 0        b c e 497        \b\ 0              630        \b\ 0              186
Atlantic white sided dolphin..................................        \a\ 1            2,752        \b\ 1            3,135        \b\ 1            1,429
Bottlenose dolphin, offshore..................................        \a\ 1            3,289        \b\ 1            3,991        \b\ 1            1,436
Common dolphin................................................        \b\ 8           33,283        \b\ 3           41,027        \b\ 1           14,221
Long-finned pilot whale.......................................        \a\ 1        b c e 294        \b\ 1              352        \b\ 1              131
Short-finned pilot whale......................................        \a\ 1              217        \a\ 1              260        \b\ 0               96
Risso's dolphin...............................................        \a\ 1              623        \b\ 1              801        \b\ 1              237
Harbor porpoise...............................................       \a\ 71            2,106      \b\ 136            2,428       \b\ 60              995
Gray seal.....................................................        \a\ 2            3,594        \b\ 3            4,175        \b\ 2            1,989
Harbor seal...................................................        \a\ 3            8,074        \b\ 7            9,387        \b\ 4            4,475
Harp seal.....................................................        \a\ 2            3,595        \b\ 3            4,179        \b\ 1            1,992
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Impact pile driving, Construction Schedule A (double counting of impact and vibratory days removed for Level B harassment proposed take numbers).
\b\ Impact pile driving, Construction Schedule B (double counting of impact and vibratory days removed for Level B harassment proposed take numbers).
\c\ Vibratory pile setting, Construction Schedule A.
\d\ Vibratory pile setting, Construction Schedule B.
\e\ Drilling, Construction Schedule A (double counting of vibratory and drilling days removed).
\f\ Drilling, Construction Schedule B (double counting of vibratory and drilling days removed).

UXO/MEC Detonations

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

[[Page 37659]]



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

    Given that Park City Wind would be limited to detonating UXO/MECs 
during daytime and be required to employ a minimum of four PSOs to 
visually monitor for marine mammals, including those on an aircraft 
when the clearance zone is larger than 5 km, in concert with acoustic 
monitoring efforts, it is reasonable to assume that marine mammals 
would be reliably detected within the zones identified above (a maximum 
distance of approximately 648 m (2,126 feet) of the UXO/MEC being 
detonated) and that mitigation would be employed to avoid take by 
mortality or non-auditory injury. Therefore, the potential for 
mortality or non-auditory injury is de minimis (i.e., too minimal or 
minor for further concern) and not discussed further.
    It is not currently known how easily the size and charge weights of 
UXO/MECs can be identified in the field. Park City Wind must 
demonstrate to NMFS that it is able to accurately identify charge 
weights in the field prior to detonation otherwise the largest charge 
weight, E12, will be assumed and the appropriate associated mitigation 
and monitoring measures implemented. Table 28 contains the maximum (R95 
percent) modeled distances by Hannay and Zykov (2022) to PTS and TTS 
thresholds during UXO/MEC detonation for each charge weight bin.

Table 28--Maximum Distances (R95%) in Meters to PTS and TTS Thresholds (SEL) During UXO/MEC Detonation, Assuming
                                            10 dB of Attenuation \a\
----------------------------------------------------------------------------------------------------------------
                                                                Charge weight bins
   Marine mammal hearing group   -------------------------------------------------------------------------------
                                    E4 (2.3 kg)     E6 (9.1 kg)    E8 (45.5 kg)    E10 (227 kg)    E12 (454 kg)
----------------------------------------------------------------------------------------------------------------
                                              Distance to PTS-onset
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans.........             552             982           1,730           2,970           3,780
Mid-frequency cetaceans.........             <50              75             156             337             461
High-frequency cetaceans........            1820           2,950           3,710           5,390           6,200
Phocid pinnipeds................             182             357             690           1,220           1,600
----------------------------------------------------------------------------------------------------------------
                                              Distance to TTS-onset
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans.........           2,820           4,680           7,490          10,500          11,900
Mid-frequency cetaceans.........             453             773           1,240           2,120           2,550
High-frequency cetaceans........           6,140           7,960          10,300          12,900          14,100
Phocid pinnipeds................           1,470           2,350           6,490           7.610           7,020
----------------------------------------------------------------------------------------------------------------
\a\ Hannay and Zykov, 2022.

    To estimate the amount of take that may occur incidental to UXO/MEC 
detonation, Park City Wind calculated monthly densities for each 
species at the shallow portion of the OECC (representing the 12 m depth 
location; using a 14.1-km buffer) and the combined deepwater segment of 
the OECC and SWDA (20 m-45 m depths; using a 13.8-km buffer). As a 
conservative approach, the month with the highest density among the 
areas of interest for each species was carried forward to the exposure 
calculations (i.e., assumed all UXO/MECs would be detonated in the 
month with the greatest average monthly density). In some cases where 
monthly densities were unavailable, annual densities were used instead 
for some species (i.e., blue whales, pilot whale spp.). Additionally, 
the pilot whale guild, harbor seals, gray seals, and harp seals were 
scaled following the same approach described above. The resulting 
maximum density was multiplied by the number of UXOs/MECs estimated at 
each of the depths to calculate total estimated exposures. Table 29 
provides the maximum species-specific densities for the Project and 
resulting take calculations using the described approach. As described 
above, Park City Wind based the amount

[[Page 37660]]

of take proposed for authorization on the number of exposures estimated 
assuming 10 dB attenuation using a NAS, NAS would be required during 
all detonations.

 Table 29--Maximum Monthly Marine Mammal Densities (Individuals/100 km\2\) Within the Project Area With UXO/MEC
     Detonation Associated Level A Harassment (PTS) and Level B Harassment (TTS SEL) Exposure Assuming 10 dB
                                         Attenuation, and Estimated Take
----------------------------------------------------------------------------------------------------------------
                                 Shallow OECC     Deep OECC      2025 Estimated take       2026 Estimated take
                                    maximum        maximum   ---------------------------------------------------
                                    monthly        monthly
            Species                 density        density      Level A      Level B      Level A      Level B
                                 (individual/   (individual/   harassment   harassment   harassment   harassment
                                  100 km\2\)     100 km\2\)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \a\           0.116         0.707            0           14            0           13
Fin whale \a\.................           0.007         0.425            1            7            1            7
Humpback whale................            0.04         0.297            1            5            1            5
Minke whale...................           0.129          1.72            4           28            3           27
Sei whale \a\.................           0.034         0.191            1            4            1            3
Sperm whale \a\...............           0.002         0.112            1            1            1            1
Atlantic Spotted dolphin......           0.013         0.448            1            1            1            1
Atlantic White-sided dolphin..           0.051         3.278            1            3            1            3
Bottlenose dolphin, Offshore..           0.158         1.631            1            2            1            2
Common dolphin................            0.35        24.845            1           19            1           19
Pilot whales, Long-finned.....               0         0.135            1            1            1            1
Pilot whales, Short-finned....               0           0.1            1            1            1            1
Risso's dolphin...............            0.01         0.176            1            1            1            1
Harbor porpoise...............           1.772        10.608           56          217           51          193
Gray seal.....................          24.506        13.647            8          146            4           80
Harbor seal...................          55.059        30.662           17          328            8          179
Harp seal.....................          24.506        13.647            8          146            4           80
----------------------------------------------------------------------------------------------------------------
\a\ Denotes species listed under the Endangered Species Act.

HRG Surveys

    Park City Wind's proposed HRG survey activity includes the use of 
impulsive sources (i.e., boomers, sparkers) that have the potential to 
harass marine mammals. The list of equipment proposed is in Table 3 
(see Detailed Description of Specific Activities).
    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 nor proposed to be authorized. Therefore, the potential for 
Level A harassment is not evaluated further in this document. Park City 
Wind did not request, and NMFS is not proposing to authorize, take by 
Level A harassment incidental to HRG surveys. No serious injury or 
mortality is anticipated to result from HRG survey activities.
    Specific to HRG surveys, in order to better consider the narrower 
and directional beams of the sources, NMFS has developed a tool, 
available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance, for determining 
the distances at which sound pressure level (SPLrms) generated from HRG 
surveys reach the 160 dB threshold. The equations in the tool consider 
water depth, frequency-dependent absorption and some directionality to 
refine estimated ensonified zones. Park City 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 operating with different beam 
widths, the beam width associated with operational characteristics 
reported in Crocker and Fratantonio (2016) were used (Li and Koessler, 
2022).
    The isopleth distances corresponding to the Level B harassment 
threshold for each type of HRG equipment with the potential to result 
in harassment of marine mammals were calculated per NOAA Fisheries' 
Interim Recommendation for Sound Source Level and Propagation Analysis 
for High Resolution Geophysical Sources. The distances to the 160 dB 
RMS re 1 [mu]Pa isopleth for Level B harassment are presented in Table 
30. Please refer to Appendix I in Li and Koessler (2022) for a full 
description of the methodology and formulas used to calculate distances 
to the Level B harassment threshold.

             Table 30--Distances Corresponding to the Level B Harassment Threshold for HRG Equipment
----------------------------------------------------------------------------------------------------------------
                                                                       Horizontal distance
        HRG survey equipment                  Equipment type             (m) to Level B        Ensonified area
                                                                      harassment threshold         (km\2\)
----------------------------------------------------------------------------------------------------------------
Applied Acoustics AA251 Boomer......  SBP: Boomer...................                   178                 28.58
GeoMarine Geo Spark 2000 (400 tip)..  SBP: Sparker..................                   141                 22.62
----------------------------------------------------------------------------------------------------------------

    The survey activities that have the potential to result in Level B 
harassment (160 dB SPL) include the noise produced by Applied Acoustics 
AA251 Boomer or GeoMarine Geo Spark 2000 (400 tip) (Table 30), of which 
the

[[Page 37661]]

Applied Acoustics AA251 Boomer results in the greatest calculated 
distance to the Level B harassment criteria at 178 m (584 ft). Park 
City Wind has applied the estimated distance of 178 m (584 ft) to the 
160 dBRMS90 percent re 1 [mu]Pa Level B harassment criteria 
as the basis for determining potential take from all HRG sources. All 
noise-producing survey equipment is assumed to be operated 
concurrently. Three vessels are assumed to be operating concurrently.
    The total area ensonified was estimated by considering the distance 
of the daily vessel track line (determined using the estimated average 
speed of the vessel and the 24-hour operational period within each of 
the corresponding survey segments) and the longest horizontal distance 
to the relevant acoustic threshold from an HRG sound source (full 
formula in section 6.6 of the ITA application). Using the larger 
distance of 178 m (164 ft) to the 160 dBRMS90 percent re 1 
[mu]Pa Level B harassment isopleth (Table 30), the estimated daily 
vessel track of approximately 80 km (49.7 mi) per vessel for 24-hour 
operations, inclusive of an additional circular area to account for 
radial distance at the start and end of a 24-hour cycle, estimates of 
the total area ensonified to the Level B harassment threshold per day 
of HRG surveys were calculated (Table 30).
    Exposure calculations assumed that there would be 25 days of HRG 
surveying per year over each of the 5 years. As described in the ITA 
application, density data were mapped within the boundary of the 
Project Area using geographic information systems, these data were 
updated based on the revised data from the Duke Model. Because the 
exact dates of HRG surveys are unknown, the highest density month for 
each species was used and carried forward in the take calculations 
(Table 31).
    The calculated exposure estimates based on the exposure modeling 
methodology described above were compared with the best available 
information on marine mammal group sizes. Group sizes used for HRG take 
estimates were the same as those used for impact pile driving take 
estimation (Section 6.1.2 in the ITA application). Park City Wind also 
used data collected by Protected Species Observers (PSOs) on survey 
vessels operating during HRG surveys in 2020-2021 from their nearby 
Vineyard Wind project area (Tables 14 and 15). It was determined that 
the calculated number of potential takes by Level B harassment based on 
the exposure modeling methodology above may be underestimates for some 
species and therefore warranted adjustment using group size to ensure 
conservatism in the take numbers proposed for authorization. Despite 
the relatively small modeled Level B harassment zone (178 m) for HRG 
survey activities, it was determined that adjustments to the requested 
numbers of take by Level B harassment for some dolphin species was 
warranted to be conservative (see below).
    For certain species for which the density-based methodology 
described above may result in potential underestimates of take and Park 
City Wind's PSO sightings data were relatively low, adjustments to the 
exposure estimates were made based on the best available information on 
marine mammal group sizes to ensure conservatism. For species with 
densities too low in the region to provide meaningful modeled exposure 
estimates (i.e., rare species), the take request is based on the 
average group size (Table 31). For species not considered rare in the 
Project Area, but AMAPP data or Park City Wind PSO data show a higher 
group size level than the Duke Model, then the take proposed for 
authorization by Level B harassment was adjusted to one group size per 
day of HRG surveys (Table 31).
    For species considered rare but that still have the small potential 
for occurrence in the Project area, takes proposed for authorization by 
Level B harassment during HRG surveys were requested by Park City Wind. 
This occurred for white-beaked dolphin, killer whale, and false killer 
whale. Park City Wind based their takes proposed for authorization on 
these species by using one group size per year in 3 of 5 years for 
species. Group sizes used were based on PSO observations during 
previous HRG surveys.

 Table 31--Marine Mammal Densities Used in Exposure Estimates and Estimated Takes by Level B Harassment From HRG
                                                     Surveys
----------------------------------------------------------------------------------------------------------------
                                      Maximum
                                      monthly         Annual          Annual                       Requested 5-
             Species                density \a\   exposure using  exposure using     Requested      year total
                                     (No./100     the boomer \f\    the sparker     annual take        take
                                      km\2\)                            \g\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\..           0.567            4.05            3.21               5              25
Fin whale \b\...................           0.436            3.11            2.47               4              20
Humpback whale..................           0.323            2.31            1.83               3              15
Minke whale.....................           1.704           12.17            9.64              13              65
Sei whale \b\...................           0.193            1.38            1.09               2              10
Sperm whale b h.................           0.111            0.79            0.62               2              10
Atlantic spotted dolphin \h\....           0.404            2.88            2.28              30             150
Atlantic white-sided dolphin \h\           3.406           24.34           19.26              28             140
Bottlenose dolphin, offshore \h\           1.753           12.53            9.92              18              90
Common dolphin \c\..............          28.314           202.3          160.13             203           1,015
Long-finned pilot whale d h.....           0.149            1.06            0.84              17              85
Short-finned pilot whale d h....            0.11            0.78            0.62               9              45
Risso's dolphin \h\.............           0.187            1.34            1.06               7              35
False Killer whale \i\..........             N/A             N/A             N/A               5              15
Killer whale \i\................             N/A             N/A             N/A               2               6
White-beaked dolphin \i\........             N/A             N/A             N/A              30              90
Harbor porpoise.................          10.974           78.41           62.07              79             395
Gray seal \e\...................          27.901          199.35           157.8             200           1,000
Harbor seal \e\.................          62.687          447.89          354.54             448           2,240
Harp seal \e\...................          27.901          199.35           157.8             200           1,000
----------------------------------------------------------------------------------------------------------------
\a\ Cetacean density values from the Duke Model.
\b\ Listed as Endangered under the ESA.
\c\ Take rounded up to one group size.
\d\ Long- and short-finned pilot whale densities are the annual pilot whale guild density scaled by their
  relative abundances.

[[Page 37662]]

 
\e\ Gray and harbor seal densities are the seals guild density scaled by their relative abundances; gray seals
  are used as a surrogate for harp seals.
\f\ Applied Acoustics AA251 boomer.
\g\ GeoMarine Geo Spark 2000.
\h\ Annual take by Level B harassment is rounded up to one group size.
\i\ Rare species total take estimates are based on the assumption that a group would be seen every other year;
  hence, the 5-yr total is less than the sum of each year.

Total Take Across All Activities

    The amount of Level A harassment and Level B harassment NMFS 
proposes to authorize incidental to all Project activities combined 
(i.e., pile driving and drilling to install WTG and ESP foundations, 
UXO/MEC detonations, and HRG surveys are shown in Table 32. The annual 
amount of take that is expected to occur in each year based on Park 
City Wind's current schedules is provided in Table 32. The Year 1 take 
estimates include HRG surveys and UXO/MEC detonations. Year 2 take 
includes all activities occurring: WTG and ESP foundation installation, 
HRG surveys, and UXO/MEC detonation. Year 3 includes WTG and ESP 
foundation installation and HRG surveys. Year 4 take includes WTG and 
ESP foundation installation (assuming construction schedule B) and HRG 
surveys. Year 5 take includes HRG surveys only.
    For common and uncommon, though not ``rare,'' species where the 
exposure estimate was less than the mean group size, it was assumed 
that if one group member was exposed, then the entire group would be. 
For species where the annual number of predicted exposures was less 
than the mean group size, the annual take was increased to the mean 
group size rounded up to the nearest integer. The only species this 
applied to are the sei whale, Atlantic spotted dolphin, Risso's 
dolphin, and sperm whale. Because pile driving would occur over either 
2 or 3 years, the mean group size rule was carried over from each of 
the annual take estimates to the total take estimates for the entire 
construction schedule to account for the possibility that a single 
exposure could occur in every year of a given construction schedule.
    For species considered rare but still have the slight potential for 
occurrence in the Project area, Park City Wind requested an amount of 
annual take assuming one group size of that species may be harassed in 
any given year. However, a group is anticipated to occur only every 
other year; hence the total amount of take of the 5 years is less than 
the sum of the annual take across all 5-years. As described above, 
takes for these species are based on PSO sighting group sizes or on 
group size from OBIS data. NMFS concurs with this assessment and is 
proposing to authorize takes by Level A harassment and/or Level B 
harassment for these rare species (Table 32).
    NMFS recognizes that schedules may shift due to a number of 
planning and logistical constraints such that take may be redistributed 
throughout the 5 years. However, the total 5-year total amount of take 
for each species, shown in Table 33, and the maximum amount of take in 
any one year (Table 34) would not be exceeded.
    The amount of take that Park City Wind requested, and NMFS proposes 
to authorize, is considered conservative. NMFS does not typically 
authorize take of rare species in these circumstances; however, given 
the amount of foundation installation activities that Park City Wind is 
proposing to undertake (i.e., installation of up to 130 WTG and ESP 
positions), the large harassment zone sizes estimated from foundation 
installation, the duration of the foundation installation (up to 3 
years), that marine mammal distribution is changing and that foundation 
installation is not scheduled to begin until 2026, NMFS is proposing to 
issue take for rare species. The one exception is the request for take 
of beluga whales. There is no beluga whale stock in the U.S. Atlantic 
and the potential for a beluga whale to occur is incredibly unlikely. 
Hence, NMFS is not proposing to authorize take of beluga whales.
    For the species for which modeling was conducted, the take 
estimates are considered conservative for a number of reasons. The 
amount of take proposed to be authorized assumes the worst case 
scenario with respect to project design and schedules. As described in 
the Description of Specific Activities section, Park City Wind may use 
suction-buckets to install bottom-frame WTG and ESP foundations. Should 
Park City Wind use these foundations, take would not occur as noise 
levels would not be elevated to the degree there is a potential for 
take (i.e., no pile driving is involved with installing suction 
buckets). All calculated take incorporated the highest densities for 
any given species in any given month. The amount of proposed Level A 
harassment does not fully account for the likelihood that marine 
mammals would avoid a stimulus when possible before the individual 
accumulates enough acoustic energy to potentially cause auditory 
injury, or the effectiveness of the proposed monitoring and mitigation 
measures (with exception of North Atlantic right whales given the 
enhanced mitigation measures proposed for this species). Finally, the 
amount of take proposed to be authorized for foundation installation is 
primarily based on vibratory pile driving and drilling zones (50 km and 
16.6 km, respectively) in which Park City Wind used simplistic 
calculations (density x area x number of days of activity) to estimate 
take that are inherently conservative.

Table 32--Proposed Level A Harassment and Level B Harassment Takes for All Activities Proposed To Be Conducted Annually for the Project Over 5 Years a b
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Year 1                  Year 2                  Year 3                  Year 4                  Year 5
                                 -----------------------------------------------------------------------------------------------------------------------
             Species                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
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale \c\..           0          19           0         111           0         109           0          53           0           5
Blue whale c d..................           0           0           1           2           1           2           1           2           0           0
 Fin whale \c\..................           1           1          10         483          20         575           9         208           0           4
Humpback whale..................           1           8          10         295          16         330           7         114           0           3
Minke whale.....................           4          41          34         933          85       1,042          38         486           0          13
Sei whale \c\...................           1           6           2          52           2          53           1          30           0           2
Sperm whale \c\.................           1           3           2         115           1         140           1          44           0           2
Dwarf sperm whale \d\...........           0           0           2           2           2           2           2           2           0           0

[[Page 37663]]

 
Pygmy sperm whale \d\...........           0           0           2           2           2           2           2           2           0           0
Cuvier's beaked whale \d\.......           0           0           0           3           0           3           0           3           0           0
Blainville's beaked whale \d\...           0           0           0           4           0           4           0           4           0           0
Gervais' beaked whale \d\.......           0           0           0           4           0           4           0           4           0           0
Sowerby's beaked whale \d\......           0           0           0           4           0           4           0           4           0           0
True's beaked whale \d\.........           0           0           0           3           0           3           0           3           0           0
Northern bottlenose whale \d\...           0           0           0           4           0           4           0           4           0           0
Atlantic spotted dolphin \d\....           1          31           1         528           0         660           0         216           0          30
Atlantic white-sided dolphin....           1          31           2       2,783           1       3,163           1       1,457           0          28
Bottlenose dolphin, offshore....           1          20           2       3,309           1       4,009           1       1,454           0          18
Clymene dolphin \d\.............           0           0           0         167           0         167           0         167           0           0
Common dolphin..................           1         222           9      33,505           3      41,230           1      14,424           0         203
Long-finned pilot whale \e\.....           1          18           2         312           1         369           1         148           0          17
Short-finned pilot whale........           1          10           2         227           1         269           0         105           0           9
Risso's dolphin.................           1           8           2         631           1         808           1         244           0           7
False killer whale \d\..........           0           5           0          10           0          10           0          10           0           5
Fraser's dolphin \d\............           0           0           0         192           0         192           0         192           0           0
Killer whale \d\................           0           2           0           4           0           4           0           4           0           2
Melon-headed whale \d\..........           0           0           0         109           0         109           0         109           0           0
Pantropical Spotted dolphin \d\.           0           0           0          60           0          60           0          60           0           0
Pygmy killer whale \d\..........           0           0           0           5           0           5           0           5           0           0
Rough-toothed dolphin \d\.......           0           0           0          14           0          14           0          14           0           0
Spinner dolphin \d\.............           0           0           0          51           0          51           0          51           0           0
Striped dolphin \d\.............           0           0           0          64           0          64           0          64           0           0
White-beaked dolphin \d\........           0          30           0          60           0          60           0          60           0          30
Harbor porpoise.................          56         296         122       2,378         136       2,507          60       1,074           0          79
Gray seal.......................           8         346           6       3,874           3       4,375           2       2,189           0         200
Harbor seal.....................          17         776          11       8,701           7       9,835           4       4,923           0         448
Harp seal.......................           8         346           6       3,875           3       4,379           1       2,192           0         200
Hooded seal \d\.................           0           0           0           1           0           1           0           1           0           0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The final rule and LOA, if issued, would be effective from March 27, 2025-March 26, 2030
\b\ For days when pile installation includes both vibratory setting and drilling, only the vibratory setting Level B takes are included (because more
  takes are predicted for this activity) and not the drilling Level B takes to avoid double counting. For the purpose of this take request, Year 1 is
  assumed to be 2025. These dates reflect the currently projected construction start year and are subject to change because exact project start dates
  and construction schedules are not currently available.
\c\ Listed as Endangered under the ESA.
\d\ Rare species in the project area. Rare species total take estimates for the project are based on the assumption that a group would be seen every
  other year; hence, the 5-yr total is less than the sum of all years combined.
\e\ Level B take estimate increased to 1 average group size in Year 1 and Year 3 for construction Schedule B.


 Table 33--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 of the Project
----------------------------------------------------------------------------------------------------------------
                                                                                       Total Level B harassment
                        Species                           Total Level A harassment               \a\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \b\........................                            0                          293
Blue whale b c........................................                            2                            4
Fin whale \b\.........................................                           37                        1,256
Humpback whale........................................                           31                          759
Minke whale...........................................                          155                        2,457
Sei whale \b\.........................................                            6                          140
Sperm whale \b\.......................................                            3                          294
Dwarf sperm whale \c\.................................                            4                            4
Pygmy sperm whale \c\.................................                            4                            4
Cuvier's beaked whale \c\.............................                            0                            6
Blainville's beaked whale \c\.........................                            0                            8
Gervais' beaked whale \c\.............................                            0                            8
Sowerby's beaked whale \c\............................                            0                            8
True's beaked whale \c\...............................                            0                            6
Northern bottlenose whale \c\.........................                            0                           12
Atlantic spotted dolphin..............................                            2                        1,406
Atlantic white-sided dolphin..........................                            3                        7,263
Bottlenose dolphin, offshore..........................                            3                        8,627
Clymene dolphin \c\...................................                            0                          334
Common dolphin........................................                           10                       86,306
Long-finned pilot whale...............................                            3                          847
Short-finned pilot whale..............................                            3                          607
Risso's dolphin.......................................                            3                        1,656
False killer whale \c\................................                            0                           25
Fraser's dolphin \c\..................................                            0                          384
Killer whale \c\......................................                            0                           10
Melon-headed whale \c\................................                            0                          218
Pantropical Spotted dolphin \c\.......................                            0                          120

[[Page 37664]]

 
Pygmy killer whale \c\................................                            0                           10
Rough-toothed dolphin \c\.............................                            0                           28
Spinner dolphin \c\...................................                            0                          102
Striped dolphin \c\...................................                            0                          128
White-beaked dolphin \c\..............................                            0                          150
Harbor porpoise.......................................                          352                        6,197
Gray seal.............................................                           17                       10,924
Harbor seal...........................................                           37                       24,551
Harp seal.............................................                           17                       10,933
Hooded seal \c\.......................................                            0                            3
----------------------------------------------------------------------------------------------------------------
\a\ For days when pile installation includes both vibratory setting and drilling, only the vibratory setting
  Level B takes are included (because more takes are predicted for this activity) and not the drilling Level B
  takes to avoid double counting.
\b\ Listed as Endangered under the ESA.
\c\ Rare species in the project area. Rare species total take estimates are based on the assumption that a group
  would be seen every other year during 3 years of construction. Additionally, white-beaked dolphins, false
  killer whale, and killer whale had one group size per year accounted for in 3 of 5 years for HRG surveys.
  Hence, the 5-yr total is less than the sum of all years combined, as described in Sections 6.1.2 and 6.8.2 of
  the ITA application.

    To inform both the negligible impact analysis and the small numbers 
determination, NMFS assesses the maximum number of takes of marine 
mammals that could occur within any given year. 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 34). Table 34 also 
depicts the number of takes proposed relative to the abundance of each 
stock. The takes enumerated here represent daily instances of take, not 
necessarily individual marine mammals taken. One take represents a day 
in which an animal was exposed to noise above the associated harassment 
threshold at least once. Some takes represent a brief exposure above a 
threshold, while in some cases takes could represent a longer, or 
repeated, exposure of one individual animal above a threshold within a 
24-hour period. Whether or not every take assigned to a species 
represents a different individual depends on the daily and seasonal 
movement patterns of the species in the area. For example, activity 
areas with continuous activities (all or nearly every day) overlapping 
known feeding areas (where animals are known to remain for days or 
weeks on end) or areas where species with small home ranges live (e.g., 
some pinnipeds) are more likely to result in repeated takes to some 
individuals. Alternatively, activities far out in the deep ocean or 
takes to nomadic species where individuals move over the population's 
range without spatial or temporal consistency represent circumstances 
where repeat takes of the same individuals are less likely. In other 
words, for example, 100 takes could represent 100 individuals each 
taken on one day within the year, or it could represent 5 individuals 
each taken on 20 days within the year, or some other combination 
depending on the activity, whether there are biologically important 
areas in the project area, and the daily and seasonal movement patterns 
of the species of marine mammals exposed. Where information to better 
contextualize the enumerated takes for a given species is available, it 
is discussed in the Negligible Impact Analysis and Determination and/or 
Small Numbers sections, as appropriate.

 Table 34--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
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percent stock
                                    NMFS stock    Maximum annual  Maximum annual  Maximum annual  taken based on
             Species               abundance \b\      Level A         Level B          take       maximum annual
                                                    harassment      harassment                       take \a\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \c\..             338               0             111             111            32.8
Blue whale c d..................             402               1               2               3             0.7
Fin whale \c\...................           6,802              20             575             595             8.7
Humpback whale..................           1,396              16             330             346            24.8
Minke whale.....................          21,968              85           1,042           1,127             5.1
Sei whale \c\...................           6,292               2              53              55             0.9
Sperm whale \c\.................           4,349               2             140             142             3.3
Dwarf sperm whale \d\...........           7,750               2               2               4             0.1
Pygmy sperm whale \d\...........           7,750               2               2               4             0.1
Cuvier's beaked whale \d\.......           5,744               0               3               3             0.1
Blainville's beaked whale \d\...          10,107               0               4               4            <0.1
Gervais' beaked whale \d\.......           5,744               0               4               4             0.1
Sowerby's beaked whale \d\......          10,107               0               4               4            <0.1
True's beaked whale\d\..........          10,107               0               3               3            <0.1
Northern bottlenose whale d e...             UNK               0               4               4             UNK
Atlantic spotted dolphin........          39,921               1             660             661             1.7
Atlantic white-sided dolphin....          93,233               2           3,163           3,165             3.4

[[Page 37665]]

 
Bottlenose dolphin, offshore....          62,851               2           4,009           4,011             6.4
Clymene dolphin \d\.............           4,237               0             167             167             3.9
Common dolphin..................         172,897               9          41,230          41,239            23.9
Long-finned pilot whale.........          39,215               2             369             371             0.9
Short-finned pilot whale........          28,924               2             269             271             0.9
Risso's dolphin.................          35,215               2             808             810             2.3
False killer whale d e..........           1,791               0              10              10             0.6
Fraser's dolphin \d\............             UNK               0             192             192             UNK
Killer whale d e................             UNK               0               4               4             UNK
Melon-headed whale \d\..........             UNK               0             109             109             UNK
Pantropical Spotted dolphin \d\.           6,593               0              60              60             0.9
Pygmy killer whale \d\..........             UNK               0               5               5             UNK
Rough-toothed dolphin \d\.......             136               0              14              14            10.3
Spinner dolphin \d\.............           4,102               0              51              51             1.2
Striped dolphin \d\.............          67,036               0              64              64             0.1
White-beaked dolphin d e........         536,016               0              60              60             0.0
Harbor porpoise.................          95,543             136           2,507           2,643             2.8
Gray seal.......................          27,300               8           4,375           4,383            16.1
Harbor seal.....................          61,336              17           9,835           9,852            16.1
Harp seal.......................       7,600,000               8           4,379           4,387            <0.1
Hooded seal \d\.................             UNK               0               1               1            <0.1
----------------------------------------------------------------------------------------------------------------
\a\ The values in this column represent the assumption that each take proposed to be authorized would occur to a
  unique individual. Given the scope of work proposed, this is highly unlikely for species common to the project
  area (e.g., North Atlantic right whales, humpback whales) such that the actual percentage of the population
  taken is less than the percentages identified here.
\b\ Using the most recent stock assessment report (SAR) at time of publication, the draft 2022 (Hayes et al.,
  2023).
\c\ Listed as Endangered under the ESA.
\d\ Rare species in the project area. The number of Level A harassment and Level B harassment takes calculated
  for rare species is based on the mean group size assuming a 3 year construction schedule (all rare species)
  and encounters during HRG surveys for white-beaked dolphin, killer whale, and false killer whale.
\e\ Take for these species is based on PSO sighting group sizes; for all other rare species the group size is
  from OBIS data.

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 the project's activities to minimize Level A 
harassment and Level B harassment to the extent practicable, while 
providing estimates of the areas within which Level B harassment might 
occur.
    Generally speaking, the mitigation measures considered and proposed 
here fall into three categories: temporal (seasonal and daily) work 
restrictions, real-time measures (shutdown, clearance, and vessel 
strike avoidance), and noise attenuation/reduction measures. Seasonal 
work restrictions are designed to avoid or minimize operations when 
marine mammals are concentrated or engaged in behaviors that make them 
more susceptible or make impacts more likely in order to reduce both 
the number and severity of potential takes, and are effective in 
reducing both chronic (longer-term) and acute effects. Real-time 
measures, such as implementation of shutdown and pre-clearance zones 
and vessel strike avoidance measures, are intended to

[[Page 37666]]

reduce the probability or severity of harassment by taking steps in 
real time once a higher-risk scenario is identified (e.g., once animals 
are detected within an impact zone). Noise attenuation measures, such 
as bubble curtains, are intended to reduce the noise at the source, 
which reduces both acute impacts, as well as the contribution to 
aggregate and cumulative noise that may result in longer term chronic 
impacts.
    Below, we briefly describe 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 monopile foundation and jacket foundation installation, 
HRG surveys, and UXO/MEC detonation. Details on specific requirements 
can be found in the Part 217--Regulations Governing The Taking And 
Importing Of Marine Mammals at the end of this proposed rulemaking.

Training and Coordination

    NMFS requires the Park City Wind employees and contractors 
conducting activities on the water and all vessel captains and crew are 
trained in marine mammal detection and identification, communication 
protocols, and reporting to minimize impacts on marine mammals and 
support Park City Wind's compliance with the mitigation, monitoring, 
and reporting requirements. All relevant personnel and the marine 
mammal monitoring team(s) would be required to participate in joint, 
onboard briefings that would be led by Park City Wind personnel and the 
Lead PSO prior to the beginning of project activities. The briefing 
would be repeated whenever new relevant personnel (e.g., new PSOs, 
acoustic source operators, relevant crew) join the operation before 
work commences. During this training, Park City 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. More 
information on vessel crew training requirements can be found in the 
Vessel Strike Avoidance Measures sections below.
Protected Species Observers and PAM Operator Training
    Park City 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 or acoustically detecting, respectively, mysticetes, 
odontocetes, and pinnipeds in the northwestern Atlantic Ocean. Any 
remaining PSOs and PAM operators must have previous experience 
observing marine mammals and must have the ability to work with all 
required and relevant software and equipment. 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. 
Additional information on the roles and requirements of the PAM 
operators (section 4.1.1.2) and PSOs (section 4.1.1.3) can be found in 
Park City Wind's supplemental Protected Species Mitigation and 
Monitoring Plan (PSMMP) on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-construction-new-england-wind-offshore-wind. Park City Wind 
would be required to request PSO and PAM operator approvals 60-day 
prior to those personnel commencing work.
    Prior to the start of activities, a briefing would be conducted 
between the supervisors, the crew, the PSO/PAM team, the environmental 
compliance monitors, and Park City Wind personnel. This briefing would 
be to establish the responsibilities of each participating party, to 
define the chains of command, to discuss communication procedures, to 
provide an overview of the monitoring purposes, and to review the 
operational procedures. The designated PSO (i.e., Lead PSO) would 
oversee the training, the environmental compliance monitors, the PSOs, 
and other tasks specifically related to monitoring. For more 
information on the need and use of PSO and PAM personnel, please see 
Proposed Monitoring and Reporting.
North Atlantic Right Whale Awareness Monitoring
    Park City Wind must use available sources of information on North 
Atlantic right whale presence, including monitoring of the Right Whale 
Sightings Advisory System, WhaleAlert app, and Coast Guard VHF Channel 
16 throughout each day to receive notifications of any sightings, and 
information associated with any regulatory management actions (e.g., 
establishment of a zone identifying the need to reduce vessel speeds). 
Maintaining daily awareness and coordination affords increased 
protection of North Atlantic right whales by understanding North 
Atlantic right whale presence in the area through ongoing visual and 
passive acoustic monitoring efforts and opportunities (outside of Park 
City Wind's efforts), and allows for planning reduced vessel speeds and 
construction activities, when practicable, to minimize potential 
impacts on North Atlantic right whales.

Vessel Strike Avoidance Measures

    This proposed rule contains numerous vessel strike avoidance 
measures that reduce the risk that a vessel and marine mammal could 
collide. Vessel strikes are one of the most common ways that marine 
mammals are seriously injured or killed by human activities; therefore, 
enhanced mitigation and monitoring measures are required to avoid 
vessel strikes. While many of these measures are proactive intending to 
avoid the heavy use of vessels during times when marine mammals of 
particular concern may be in the area, several are reactive and occur 
when a marine mammal is sighted by project personnel. The exact 
requirements we propose are described generally here and, in detail, in 
the regulation text at the end of this proposed rule. Park City 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.
    Prior to the start of in-water construction activities, vessel 
operators and crews would receive training about marine mammals and 
other protected species known or with the potential to occur in the 
project area, making observations in all weather conditions, and vessel 
strike avoidance measures. In addition, training would include 
information and resources available regarding applicable Federal laws 
and regulations for protected species. Park City Wind would provide 
documentation of training to NMFS.
    While underway, Park City Wind would be required to monitor for and 
maintain a safe distance from marine mammals, and operate vessels in a 
manner that reduces the potential for vessel strike. Regardless of the 
vessel's size, all vessel operators, crews, and dedicated visual 
observers (i.e., PSO or trained crew member) would maintain a vigilant 
watch for all marine mammals and slow down, stop their vessel, or alter 
course (as appropriate) to avoid striking any marine mammal. The 
dedicated visual observer, equipped with suitable monitoring technology 
(e.g., binoculars, night vision devices), would be located at an 
appropriate

[[Page 37667]]

vantage point for ensuring vessels are maintaining required vessel 
separation distances from marine mammals (e.g., 500 m from NARWs). All 
Park City Wind-related vessels would comply with existing NMFS vessel 
speed restrictions for NARWs (50 CFR 224.105; including in areas 
designated as SMAs, DMAs, or Slow Zones) and required procedures for 
operating vessels around NARWs and other marine mammals. If a vessel is 
traveling at greater than 10 kn, in addition to the required dedicated 
visual observer, Park City Wind would monitor the transit corridor in 
real-time with PAM prior to and during transits. To maintain awareness 
of NARW presence in the project area, vessel operators, crew members, 
and PSOs would monitor VHF Channel 16, WhaleAlert, the Right Whale 
Sighting Advisory System (RWSAS), and the PAM system. Any NARW or large 
whale detection would be immediately communicated to PSOs, PAM 
operators, and all vessel captains. All vessels would be equipped with 
an Automatic Identification System (AIS) and Park City Wind must report 
all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of 
Protected Resources prior to initiating in-water activities. Park City 
Wind would submit a NMFS-approved North Atlantic right whale vessel 
strike avoidance plan 180 days prior to commencement of vessel use.
    Compliance with these proposed measures would reduce the likelihood 
of vessel strike by increasing awareness of marine mammal presence in 
the project area (e.g., monitoring, communication), reducing vessel 
speed when marine mammals are detected (by PSOs, PAM, and/or through 
another source, e.g., RWSAS), and maintaining separation distances when 
marine mammals are encountered. While visual monitoring is useful, 
reducing vessel speed is one of the most effective, feasible options 
available to minimize the likelihood of a vessel strike and, if a 
strike does occur, decrease the potential for serious injury or lethal 
outcomes. Numerous studies have indicated that slowing the speed of 
vessels reduces the risk of lethal vessel collisions, particularly in 
areas where right whales are abundant and vessel traffic is common and 
otherwise traveling at high speeds (Vanderlaan and Taggart, 2007; Conn 
and Silber, 2013; Van der Hoop et al., 2014; Martin et al., 2015; Crum 
et al., 2019).
    In 2021, NMFS released the North Atlantic Right Whale Vessel Speed 
Rule Assessment documenting a reduction in observed right whale serious 
injuries and mortalities resulting from vessel strikes since 
implementation of the speed rule in 2008 (50 CFR 224.105). Project 
vessels would be required to reduce speed in the presence of marine 
mammals and, because reducing speed has been shown to decrease the 
likelihood of vessel strike and the implementation of other measures 
described herein, NMFS considers the potential for vessel strike to be 
de minimis. Park City Wind has not requested, and NMFS does not propose 
to authorize, take from vessel strikes.

Seasonal and Daily Restrictions

    As described above, an effective measure for reducing the magnitude 
and severity of impacts from an activity is to implement time/area 
restrictions in places where marine mammals are concentrated, engaged 
in biologically important behaviors, and/or present in sensitive life 
stages. The temporal restrictions proposed here are built around the 
protection of North Atlantic right whales. The highest densities of 
North Atlantic right whales in the project area are expected during the 
months of January through April. While lower than January through 
April, densities remain high in May and December. Park City Wind 
proposed to not conduct foundation installation during January through 
April 30; however, NMFS is proposing additional mitigation measures 
during May and December. Park City Wind did not assume any vibratory 
pile driving would occur in May or December when estimating take but 
they did not specifically propose that activity during these months 
would be restricted. NMFS, however, is proposing to restrict vibratory 
pile driving, which Park City Wind estimates to have 50-km Level B 
harassment zones, in May and December given that North Atlantic right 
whale densities remain high in the project area during this time. 
Foundation installation activities must not be planned in December; 
except for in the event of unforeseen circumstances (e.g., delays 
resulting in a few piles needing to be installed in December to remain 
on schedule) and with NMFS advance approval and vibratory pile driving 
in May was not proposed and is restricted. As with foundation 
installation, NMFS is similarly proposing to restrict UXO/MEC 
detonations December through May; except for with NMFS' advanced 
approval on the condition that Park City Wind provides justification 
for the proposed detonation. NMFS is requiring this seasonal work 
restriction to minimize the North Atlantic right whales risk of 
exposure to noise incidental to foundation installation and UXO/MEC 
detonation. These seasonal work restrictions are expected to greatly 
reduce the number of takes of North Atlantic right whales. These 
seasonal restrictions also afford protection to other marine mammals 
that are known to use the project area with greater frequency during 
winter months, including other baleen whales.
    On a daily basis, no more than two monopile foundations or four pin 
piles may be installed per day and no more than one UXO/MEC may be 
detonated per 24-hr period. Moreover, detonations may only occur during 
daylight hours. No more than one pile may be installed at a given time 
(i.e., concurrent/simultaneous pile driving and drilling may not 
occur).
    Park City Wind has proposed to conduct foundation installation 
activities that may result in the harassment of marine mammals during 
reduced visibility conditions and initiate pile driving during 
nighttime when detection of marine mammals is visually challenging. As 
described in the Proposed Monitoring and Reporting section, effective 
marine mammal detection occurs when dual monitoring methods (visual and 
acoustic) are employed. Park City Wind has not yet demonstrated to NMFS 
that the equipment (e.g., night vision devices, IR/thermal camera) they 
propose to use during reduced visibility conditions, including 
nighttime, are adequate to monitor marine mammals, particularly large 
whales, to distances necessary to ensure mitigation measures are 
effective. Therefore, at this time, NMFS has not determined if 
initiating pile driving at night should occur. NMFS will provide Park 
City Wind the opportunity to submit a monitoring plan considering pile 
driving activities during times of reduced visibility, including 
nighttime (Nighttime Monitoring Plan), and NMFS will make a decision on 
whether to authorize Park City Wind to conduct pile driving and 
drilling in reduced visibility conditions, including nighttime, at the 
final rule stage, if issued.
    Given the very small harassment zones resulting from HRG surveys 
and that the best available science indicates that any harassment from 
HRG surveys, should a marine mammal be exposed, would manifest in minor 
behavioral harassment only (e.g., potentially some avoidance of the 
vessel), NMFS is not proposing any seasonal and daily restrictions for 
HRG surveys.

Noise Attenuation Systems

    Park City Wind would employ noise abatement systems (NAS), also 
known as noise attenuation systems, during all

[[Page 37668]]

foundation installation activities (i.e., pile driving and drilling) 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 foundation installation. Park City Wind 
would be required to employ a big double bubble curtain, other 
technology capable of achieving a 10-dB sound level reduction, or a 
combination of two or more NAS capable of achieving a 10-dB sound level 
reduction during these activities as well as the adjustment of 
operational protocols to minimize noise levels. Noise attenuation 
devices would also be required during any UXO/MEC detonation.
    Two categories of NAS exist: primary and secondary. A primary NAS 
would be used to reduce the level of noise produced by foundation 
installation activities at the source, typically through adjustments on 
to the equipment (e.g., hammer strike parameters). Primary NAS are 
still evolving and will be considered for use during mitigation efforts 
when the NAS has been demonstrated as effective in commercial projects. 
However, as primary NAS are not fully effective at eliminating noise, a 
secondary NAS would be employed. The secondary NAS is a device or group 
of devices that would reduce noise as it was transmitted through the 
water away from the pile, typically through a physical barrier that 
would reflect or absorb sound waves and therefore, reduce the distance 
the higher energy sound propagates through the water column. Together, 
these systems must reduce noise levels to 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 Sound Field 
Verification (SFV; see Sound Field Verification section below and Part 
217--Regulations Governing The Taking And Importing Of Marine Mammals).
    Noise abatement systems, such as bubble curtains, are used to 
decrease the sound levels radiated from a source. Bubbles create a 
local impedance change that acts as a barrier to sound transmission. 
The size of the bubbles determines their effective frequency band, with 
larger bubbles needed for lower frequencies. There are a variety of 
bubble curtain systems, confined or unconfined bubbles, and some with 
encapsulated bubbles or panels. Attenuation levels also vary by type of 
system, frequency band, and location. Small bubble curtains have been 
measured to reduce sound levels but effective attenuation is highly 
dependent on depth of water, current, and configuration and operation 
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann, 
2013). Bubble curtains vary in terms of the sizes of the bubbles and 
those with larger bubbles tend to perform a bit better and more 
reliably, particularly when deployed with two separate rings (Bellmann, 
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016). 
Encapsulated bubble systems (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 Park City Wind include a big 
bubble curtain (BBC), a hydro-sound damper, or an AdBm Helmholz 
resonator (Elzinga et al., 2019). If a single system is used, it must 
be a double big bubble curtain (dBBC). Other dual systems (e.g., noise 
mitigation screens, hydro-sound damper, AdBm Helmholz resonator) may 
also be used, although many of these 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, Park City Wind may submit data on the effectiveness of 
these systems and request approval from NMFS to use them during 
foundation installation and UXO/MEC detonation activities
    The literature presents a wide array of observed attenuation 
results for bubble curtains. The variability in attenuation levels is 
the result of variation in design as well as differences in site 
conditions and difficulty in properly installing and operating in-water 
attenuation devices. D[auml]hne et al. (2017) found that single bubble 
curtains that reduce sound levels by 7 to 10 dB reduced the overall 
sound level by approximately 12 dB when combined as a double bubble 
curtain for 6-m steel monopiles in the North Sea. During installation 
of monopiles (consisting of approximately 8-m in diameter) for more 
than 150 WTGs in comparable water depths (>25 m) and conditions in 
Europe indicate that attenuation of 10 dB is readily achieved 
(Bellmann, 2019; Bellmann et al., 2020) using single BBCs for noise 
attenuation.
    If a bubble curtain is used (single or double), Park City Wind 
would be required to maintain the following operational performance 
standards: 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. Park City 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 Park City Wind within 72 hours 
following the performance test. Corrections to the attenuation device 
to meet the performance standards must occur prior to use during 
foundation installation activities and UXO/MEC detonation. If Park City 
Wind uses a noise mitigation device in addition to a BBC, similar 
quality control measures would be required.
    Noise abatement devices are not required during HRG surveys as they 
are not practicable to implement nor would be effective. However, Park 
City Wind would be required to make efforts to minimize source levels 
by using the lowest energy settings on equipment that has the potential 
to result in harassment of marine mammals (e.g., sparkers, boomers) and 
turn off equipment when not actively surveying. Overall, minimizing the 
amount and duration of noise in the ocean from any of Park City Wind's 
activities through use of all means necessary (e.g., noise abatement, 
turning off power) will effect the least practicable adverse impact on 
marine mammals.

Clearance and Shutdown Zones

    NMFS is proposing to require the establishment of both clearance 
and shutdown zones during all foundation installation activities that 
have the potential to result in harassment of marine mammals (i.e., 
pile driving and drilling) and HRG surveys. The purpose of 
``clearance'' of a particular zone is to prevent or minimize potential 
instances of auditory injury and more severe behavioral disturbances by 
delaying the commencement of an activity if marine mammals are near the 
activity. The purpose of a shutdown is to prevent a specific acute 
impact, such as auditory injury or severe behavioral disturbance

[[Page 37669]]

of sensitive species, by halting the activity.
    Prior to the start of conducting activities that can harass marine 
mammals (foundation installation, HRG surveys, or UXO/MEC detonation), 
Park City Wind would ensure designated areas are clear of marine 
mammals prior to commencing activities to minimize the potential for 
and degree of harassment. Once pile driving or drilling activity 
begins, any marine mammal entering the shutdown zone (Tables 35 and 36) 
would trigger pile driving to cease (unless shutdown is not practicable 
due to imminent risk of injury or loss of life to an individual or risk 
of damage to a vessel that creates risk of injury or loss of life for 
individuals). Because UXO/MEC detonations are instantaneous, no 
shutdown is possible; therefore, there are clearance zones but no 
shutdown zones for UXO/MEC detonations (Table 38).
    All clearance zones during foundation installation and UXO/MEC 
detonations would be monitored by NMFS- approved PSOs and PAM 
operators. PSOs must visually monitor clearance zones for marine 
mammals for a minimum of 60 minutes prior to commencing the activity. 
During HRG surveys, PSO(s) must visually monitor clearance zones for 30 
minutes prior to commencing survey activities when using sources that 
may result in the harassment of marine mammals (e.g., sparker, boomers, 
CHIRPs). In addition to PSOs, at least one PAM operator must review 
data from at least 24 hours prior to foundation installation and UXO/
MEC detonation and actively monitor hydrophones for 60 minutes prior to 
commencement of these activities. Prior to initiating soft-start 
procedures for impact pile driving, all clearance zones must be 
confirmed to be free of marine mammals for at least 30 minutes 
immediately prior to commencing activities. In addition, pile driving 
will be delayed upon a confirmed PAM detection of a North Atlantic 
right whale, if the PAM detection is confirmed to have been located 
within the North Atlantic right whale PAM Clearance zone (Tables 35 and 
36). Any large whale sighted by a PSO within the North Atlantic right 
whale PSO Clearance Zone that cannot be identified to species must be 
treated as if it were a North Atlantic right whale.
    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 during foundation installation 
activities to ensure both visual and acoustic methods are used in 
tandem to detect marine mammals resulting in maximum detection 
capability. No minimum visibility zone is proposed for UXO/MEC 
detonation as the entire visual clearance zone must be clear given the 
potential for lung and GI injury. The minimum visibility zone for 
foundation installation activities (pile driving and drilling) would 
extend from the location of the pile being driven out to 3.2 km (3,200 
m). This value corresponds to just greater than the modeled maximum 
ER95 percent distances to the Level A harassment threshold 
for North Atlantic right whales, assuming 10 dB of attenuation. The 
entire minimum visibility zone must be visible for a full 30 minutes 
immediately prior to commencing pile driving, drilling, and UXO/MEC 
detonation.
    If a North Atlantic right whale is detected during the clearance 
period, regardless of distance from the pile being installed, pile 
driving and drilling must not begin until 30 minutes has passed since 
the last sighting (12,000 meters during UXO/MEC detonations, Table 38). 
The clearance zone may also only be declared clear if no confirmed 
North Atlantic right whale acoustic detections (in addition to visual) 
have occurred during the clearance 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.
    As described above, JASCO conducted source level monitoring for the 
installation of 13-m monopiles to inform the development of mitigation 
zones. JASCO conducted a scaling exercise in which the largest 10 dB 
attenuated, modeled SEL exposure ranges (between one pile per day or 
two piles per day results) for the 13 m monopile with a 5,000 kJ hammer 
scenario was scaled by the percentage increase between the largest 10 
dB attenuated, modeled SEL exposure ranges of the 12 m monopile with a 
5,000 kJ hammer scenario versus a 6,000 kJ hammer scenario for each 
hearing group:

Percentage increase = (a-b)/a Alternative mitigation zone = (c x 
Percentage increase) + c
where a is the 12 m monopile with a 5,000 kJ hammer exposure range, b 
is the 12 m monopile with a 6,000 kJ hammer exposure range, and c is 
the 13 m monopile with a 5,000 kJ hammer exposure range. The results 
informed the shutdown zones in the unlikely case a 13-m pile is 
installed with hammer energy between 5,000 to 6,000 kJ.

    Proposed clearance and shutdown zones have been developed in 
consideration of modeled distances to relevant PTS thresholds with 
respect to minimizing the potential for take by Level A harassment. All 
proposed clearance and shutdown zones for large whales are larger than 
the largest modeled exposure range (ER95 percent) distances 
to thresholds corresponding to Level A harassment (SEL and peak). If a 
marine mammal is observed entering or within the respective shutdown 
zone (Tables 35 and 36) after foundation installation has begun, the 
PSO will request a temporary cessation of those activities. If 
feasible, Park City Wind will stop those activities immediately.
    In situations when shutdown is called for but it is determined that 
a shutdown is not practicable due to imminent risk of injury or loss of 
life to an individual or pile instability, 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. 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, Park City Wind 
must reduce hammer energy to the lowest level practicable.
    The lead engineer must evaluate the following to determine if a 
shutdown is safe and practicable:
    a. Use of site-specific soil data and real-time hammer log 
information to judge whether a stoppage would risk causing piling 
refusal at re-start of piling;
    b. Confirmation that pile penetration is deep enough to secure pile 
stability in the interim situation, taking into account weather 
statistics for the relevant season and the current weather forecast; 
and
    c. Determination by the lead engineer on duty will be made for each 
pile as the installation progresses and not for the site as a whole.
    If it is determined that shutdown is not feasible, the reason must 
be documented and reported (see regulatory text).

[[Page 37670]]

    Subsequent restart of the equipment can be initiated if the animal 
has been observed exiting its respective shutdown zone within 30 
minutes of the shutdown, or, after an additional time period has 
elapsed with no further sighting (i.e., 15 minutes for small 
odontocetes and 30 minutes for all other species).
    Foundation installation will not be initiated if the clearance 
zones cannot be adequately monitored (i.e., if they are obscured by 
fog, inclement weather, poor lighting conditions) for a 30 minute 
period prior to the commencement of soft-start, as determined by the 
Lead PSO. If light is insufficient, the lead PSO will call for a delay 
until the Clearance zone is visible in all directions. If a soft-start 
has been initiated before the onset of inclement weather, pile driving 
activities may continue through these periods if deemed necessary to 
ensure human safety and/or the integrity of the Project. 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. odontocetes and 30 minutes for all other marine mammal 
species).
    During HRG surveys, Park City Wind would be required to implement a 
30-minute clearance period of the clearance zones (Table 37) 
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, Park City Wind would be required to 
shut down SBPs if a marine mammal enters a respective shutdown zone 
(Table 37). In cases when the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations would be allowed to 
continue (i.e., no shutdown is required) so long as no marine mammals 
have been detected. The use of SBPs will not be allowed to commence or 
resume until the animal(s) has been confirmed to have left the shutdown 
zone or until a full 15 minutes (for small odontocetes and seals) or 30 
minutes (for all other marine mammals) have elapsed with no further 
sighting.
    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 SBP is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, it would be allowed to 
be activated again without ramp-up only if PSOs maintained constant 
observation and no additional detections of any marine mammal occurred 
within the respective shutdown zones. If a SBP was shut down for a 
period longer than 30 minutes, then all clearance and ramp-up 
procedures would be required, as previously described.

                                         Table 35--Monopile Installation Clearance and Shutdown Zones in Meters
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                   PAM shutdown    PAM shutdown
                                                                                          PAM      zone for 12-m   zone for 13-m      PAM       Vessel
              Species                PSO clearance zone \1\     PSO shutdown zone      clearance    monopile at     monopile at   monitoring  separation
                                                                                         zone        5,000 kJ      6,000 kJ \2\    zone \4\    distance
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale........  Any distance \1\.......  Any distance \1\.......   \5\ 5,600       \5\ 4,700       \5\ 5,500      12,000         500
Other baleen whales and sperm       4,700..................  4,700..................       4,700           4,700           5,500      12,000         100
 whales.
Small whales and dolphins \3\.....  200....................  200....................         200             200             200      10,000          50
Harbor porpoise...................  2,300..................  2,300..................       2,300           2,300           2,300      10,000          50
Seals.............................  1,100..................  1,100..................       1,100           1,100           1,100      10,000          50
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Vibratory Pile Driving and Drilling
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale........  Any distance...........  Any distance...........       4,500           4,500             n/a      10,000         500
Other baleen whales and sperm       4,700..................  4,700..................       4,700           4,700             n/a      10,000         100
 whale.
Small whales and dolphins \3\.....  200....................  200....................         200             200             200      10,000          50
Harbor porpoise...................  2,300..................  2,300..................       2,300           2,300             n/a      10,000          50
Seals.............................  1,400..................  1,400..................       1,400           1,400             n/a      10,000          50
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Park City Wind has elected to set their minimum visibility for North Atlantic right whales as ``any distance'', above the minimum required by NMFS.
\2\ In the unlikely event that a 13-m monopile would need to be installed at 6,000 kJ, the alternative PAM shutdown zone would be applied. This zone is
  set equal to the maximum, scaled up Level A zone for large whales during impact pile driving (see Table 16).
\3\ Park City Wind had proposed a minimum clearance and shut down of 50 m in their application. However, this would likely be inside of the NAS and, due
  to the loud noise levels generated by foundation installation activities, NMFS has increased these distances to 200 m.
\4\ The PAM Monitoring Zone represents the distance at which marine mammals must be able to be acoustically detected.
\5\ For piles installed between May 1-May 15 and November 1-December 31, the PAM clearance and shutdown zone is 10km.


[[Page 37671]]


                                     Table 36--Jacket Foundation Installation Clearance and Shutdown Zones in Meters
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          PAM          PAM          PAM         Vessel
                Species                      PSO clearance zone \1\           PSO shutdown zone        clearance     shutdown    monitoring   separation
                                                                                                          zone         zone         zone         zone
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.............  Any distance \1\.............  Any distance \1\............    \1\ 4,500        4,500       12,000          500
Other baleen whales and sperm whale....  4,500........................  4,500.......................        4,500        4,500       12,000          100
Small whales and dolphins..............  50...........................  50..........................           50           50       10,000           50
Harbor porpoise........................  1,800........................  1,800.......................        1,800        1,800       10,000           50
Seals..................................  1,400........................  1,400.......................        1,400        1,400       10,000           50
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Vibratory Pile Driving and Drilling \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.............  Any distance.................  Any distance................        4,500        4,500       12,000          500
Other baleen whales and sperm whale....  4,700........................  4,700.......................        4,700        4,700       12,000          100
Small whales and dolphins..............  50...........................  50..........................           50           50       10,000           50
Harbor porpoise........................  2,300........................  2,300.......................        2,300        2,300       10,000           50
Seals..................................  1,400........................  1,400.......................        1,400        1,400       10,000           50
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For piles installed between May 1-May 15 and November 1-December 31, the PAM clearance and shutdown zone is 10km.


                           Table 37--HRG Survey Clearance and Shutdown Zones in Meters
----------------------------------------------------------------------------------------------------------------
                                                                                                     Vessel
                          Species                            Clearance zone     Shutdown zone    separation zone
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale................................               500               500               500
All other ESA-listed marine mammals (e.g., fin, sei, sperm               500               100               100
 whale)...................................................
All other marine mammal species \1\.......................               100               100                50
----------------------------------------------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera Delphinus, Lagenorhynchus, Stenella or
  Tursiops, as described below.


                      Table 38--UXO/MEC Detonation Visual and PAM Clearance Zones in Meters
----------------------------------------------------------------------------------------------------------------
                                                                                                 PAM monitoring
              Species                 Visual clearance zone \1\        PAM clearance zone             zone
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale........  Any distance................  Any distance...............             12,000
Low-Frequency Hearing Group.......  3,800.......................  3,800......................             12,000
Mid-Frequency Hearing Group.......  1,000.......................  1,000......................              2,600
High-Frequency Hearing Group        6,200.......................  6,200......................             14,100
 (Harbor porpoise).
Seals.............................  1,600.......................  1,600......................              7,100
----------------------------------------------------------------------------------------------------------------
\1\ The minimum visibility zone (i.e., the area which must be visibly clear of marine mammals) for UXO/MEC
  detonation is set at no less than 5 kms.

    NMFS also notes that for any UXOs/MECs that require removal, Park 
City Wind would be required to implement the As Low as Reasonably 
Practicable (ALARP) process. This process would require Park City 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.
Soft-Start/Ramp-Up
    The use of a soft-start or ramp-up procedure is believed to provide 
additional protection to marine mammals by warning them, or providing 
them with a chance to leave the area prior to the hammer 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. Park City 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, 
Park City Wind will target less than 20 percent of the total hammer 
energy for the initial hammer strikes during soft-start.
    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).
    At the start or restart of the use of boomers, sparkers, and SBPs, 
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

[[Page 37672]]

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.
    The ramp-up procedure will not be initiated during periods of 
inclement conditions if the clearance zones cannot be adequately 
monitored by the PSOs using the appropriate visual technology (e.g., 
reticulated binoculars, night vision equipment) for a 30-minute period. 
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.
    Park City Wind would not initiate ramp-up until the clearance 
process has been completed. 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).

Use of Protected Species Observers (PSO) and Passive Acoustic 
Monitoring (PAM) Operators

    As described above, Park City Wind would be required to use NMFS-
approved PSOs and PAM operators during all foundation installation, HRG 
surveys, and UXO/MEC detonation activities. NMFS requires a minimum 
number of PSOs to actively observe for marine mammals before, during, 
and after pile driving. Concurrently, NMFS requires at least one PAM 
operator to be actively monitoring for marine mammals before, during, 
and after foundation installation pile driving and drilling activities 
and UXO/MEC detonation. The minimum number of PSOs required is 
dependent upon the area to be monitored and is thus activity specific. 
Along with PSO qualification requirements, equipment, and placements 
are specified in the regulatory text. The combined use of PSOs and PAM 
operators during pile driving and UXO/MEC detonation maximizes the 
likelihood of detecting a marine mammal and thereby increasing the 
effectiveness of any of the prescribed mitigation measures.
    During all HRG survey activities using SBPs (e.g., CHIRP, boomer, 
sparker, etc.), at least one PSO would be required to monitor during 
daylight hours and at least 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), during the HRG activities, and 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 on the radial distance from the 
acoustic source and not from the vessel.

Fishery Monitoring Surveys

    All crew undertaking the fishery monitoring survey activities would 
be required to receive protected species identification training prior 
to activities occurring and attend the aforementioned onboarding 
training. 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.
    Park City Wind must implement the following ``move-on'' rule. If 
marine mammals are sighted within 1 nm of the planned location in the 
15 minutes before gear deployment, Park City Wind may decide to move 
the vessel away from the marine mammal to a different section of the 
sampling area if the animal appears to be at risk of interaction with 
the gear, based on best professional judgment. If, after moving on, 
marine mammals are still visible from the vessel, Park City Wind may 
decide to move again or to skip the station. Gear would 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.
    Park City Wind must deploy trap and trawl gear as soon as is 
practicable upon arrival at the sampling station and must initiate 
marine mammal watches (visual observation) no less than 15 minutes 
prior to both deployment and retrieval of the trap and trawl gear. 
Marine mammal watches must be conducted by scanning these surrounding 
waters with the naked eye and binoculars and monitoring effort must be 
maintained during the entire period of the time that gear is in the 
water (i.e., throughout gear deployment, fishing, and retrieval).
    If marine mammals are sighted near the vessel during the soak and 
are determined to be at risk of interacting with the gear, then Park 
City Wind must immediately retrieve the gear as quickly as possible. 
Park City Wind may use best professional judgment in making this 
decision.
    To avoid entanglement with vertical lines, buoy lines will be 
weighted and will not float at the surface of the water and all 
groundlines will consist of sinking line. Buoy lines and linkages will 
be compliant with best practices. ``Ropeless'' gear may be tested and 
used. To minimize risk of entanglement in trawl nets, trawl tow times 
would be limited to 20-minutes with a vessel speed of no more than 3.0 
knots. Trawl nets will be fully cleared and repaired if damaged before 
redeployment. If marine mammals are sighted before the gear is fully 
removed from the water, the vessel will slow its speed and maneuver the 
vessel away from the animals to minimize potential interactions with 
the observed animal. Trawl nets will be emptied immediately after 
retrieval within the vicinity of the deck and the fishery researchers 
or crew will open the codend of the trawl net close to the deck in 
order to avoid injury to animals that may be caught in the gear. Any 
marine mammal interaction would be immediately reported to NMFS.
    All gear must be clearly labeled as attributed to Park City Wind's 
fishery surveys. All fisheries monitoring gear must be fully cleaned 
and repaired (if damaged) before each use. Any lost gear associated 
with the fishery surveys will be reported to the NOAA Greater Atlantic 
Regional Fisheries Office Protected Resources Division 
([email protected]) as soon as possible or within 24 
hours of the documented time of missing or lost gear. This report must 
include information on any markings on the gear and any efforts 
undertaken or planned to recover the gear. Finally, all survey vessels 
will adhere to all vessel mitigation measures previously discussed in 
this section.
    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

[[Page 37673]]

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 the proposed construction activities, visual monitoring by 
NMFS-approved PSOs would be conducted before, during, and after all 
pile driving, drilling, UXO/MEC detonations, and HRG surveys. PAM would 
also be conducted during all impact and vibratory pile driving, 
drilling, 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 
locations (impact, vibratory, or drilling activities), 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, followed by activity-specific monitoring 
requirements.

Protected Species Observer and PAM Operator Requirements

    Park City Wind would be required to employ PSOs and PAM operators. 
PSOs are trained professionals who are tasked with visually monitoring 
for marine mammals during pile driving, drilling, HRG surveys, and UXO/
MEC detonation. The primary purpose of a PSO is to carry out the 
monitoring, collect data, and, when appropriate, call for the 
implementation of mitigation measures. In addition to visual 
observations, NMFS requires Park City Wind to conduct passive acoustic 
monitoring (PAM) during pile driving, drilling, and UXO/MEC 
detonations. The inclusion of PAM alongside visual data collection is 
valuable to provide the most accurate record of species presence as 
possible and, together, these two monitoring methods are well 
understood to provide best results when combined together (e.g., Barlow 
and Taylor, 2005; Clark et al., 2010; Gerrodette et al., 2011; Van 
Parijs et al., 2021). Acoustic monitoring (in addition to visual 
monitoring) increases the likelihood of detecting marine mammals within 
the shutdown and clearance zones of project activities, which when 
applied in combination of required shutdowns helps to further reduce 
the risk of marine mammals being exposed to sound levels that could 
otherwise result in acoustic injury or more intense behavioral 
harassment. PAM is to be conducted by NMFS-approved PAM operators and 
should follow standardized measurement, processing methods, reporting 
metrics, and metadata standards for offshore wind (Van Parijs et al., 
2021).
    Park City Wind must employ independent, dedicated, trained PSOs, 
meaning that the PSOs must be employed by a third-party observer 
provider, must have no tasks other than to conduct observational effort 
(visual or acoustic), collect data, and communicate with and instruct 
relevant Park City Wind personnel with regard to the presence of 
protected species and mitigation requirements, and must have 
successfully completed an approved PSO training course appropriate for 
their designated task (visual or acoustic). Acoustic monitoring PSOs 
(i.e., PAM operators) are required to complete specialized training for 
operating PAM systems and should have familiarity with the vessel and 
associated equipment with which they will be working, PSOs can act as 
acoustic or visual observers (but not simultaneously) as long as they 
demonstrate that their training and experience are sufficient to 
perform each task.
    Park City Wind would be required to submit names of prospective 
PSOs and PAM operators for review and confirmation of their approval 
for specific roles prior to commencement of activity requiring PSOs 
and/or PAM operators. NMFS must review and approve PSO and PAM operator 
qualifications. Resumes must include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training. NMFS may approve PSOs as conditional or 
unconditional. A conditionally approved PSO may be one who is trained 
but has not yet attained the requisite experience. An unconditionally-
approved PSO is one who has attained the necessary experience. For 
unconditional approval, the PSO must have a minimum of 90 days at sea 
performing the role (either visual or acoustic), with the conclusion of 
the most recent relevant experience not more than 18 months previous.
    NMFS is also proposing requirements to ensure monitoring is 
conducted effectively. A minimum number of PSOs would be required to be 
actively observing for the presence of marine mammals during certain 
project activities with more PSOs required as the mitigation zone sizes 
increase. PSOs and PAM operators would also be required to limit 
watches to no more than 4 hours at a time and must not exceed a 
combined watch schedule of more than 12 hours in any 24-hour time 
period. The types of equipment required (e.g., Big Eyes on the pile 
driving vessel) are also designed to increase marine

[[Page 37674]]

mammal detection capabilities. Specifics on these types of requirements 
can be found in the regulations at the end of this document 
(Requirements for monitoring and reporting). In the case where Park 
City Wind has not fully identified the manner by which they would 
conduct monitoring, they would be required to submit a plan to NMFS 180 
days in advance of the commencement of work. At this time, NMFS is 
requiring Park City Wind to submit to NMFS, for review and approval, 
PSO and PAM Monitoring Plan(s) and, as described previously, a 
Nighttime Monitoring Plan.
    As described above, PSOs and PAM operators are responsible for data 
collection. The data collected by PSO and PAM operators and subsequent 
analysis provide the necessary information to inform an estimate of the 
amount of take that occurred during the project, better understand the 
impacts of the project on marine mammals, address the effectiveness of 
monitoring and mitigation measures, and to adaptively manage activities 
and mitigation in the future. Data reported includes information on 
marine mammal sightings, activity occurring at time of sighting, 
monitoring conditions, and if mitigative actions were taken. Specific 
data collection requirements are contained within the regulations 
below.

Sound Field Verification

    During the installation of at least the first three monopile 
foundations, all piles associated with installation of the first jacket 
foundation and during all UXO/MEC detonations, Park City Wind must 
identify source levels, the ranges to the isopleths corresponding to 
the Level A harassment and Level B harassment thresholds, and 
transmission loss coefficient(s). Park City 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 piles monitored and UXO/MEC detonations. Park City Wind must 
perform sound field measurements at least three distances from the pile 
being driven, including, but not limited to, 750 m and the modeled 
Level A harassment and Level B harassment zones to verify the accuracy 
of those modeled zones. Sound field measurements should be configured 
along an unobstructed radial, free of significant bathymetric features, 
and which represents the most efficient acoustic propagation (i.e., 
where sound is expected to propagate the furthest), relative to all 
modeled radials. At each distance from the pile, one hydrophone should 
be placed at depths no less than one-half the water depth and another 
should be placed no more than 2 meters from the seabed.
    The recordings will be continuous throughout the duration of all 
foundation installation activities of each pile monitored. The 
measurement systems will have a sensitivity appropriate for the 
expected sound levels from pile driving received at the nominal ranges 
throughout the installation of the pile. The frequency range of the 
system will cover the range of at least 20 Hz to 20 kHz. The system 
will be designed to have omnidirectional sensitivity and will be 
designed so that the predicted broadband received level of all impact 
pile-driving strikes exceed the system noise floor by at least 10 dB. 
The dynamic range of the system will be sufficient such that at each 
location, pile driving signals are not clipped and are not masked by 
noise floor.
    If acoustic field measurements collected during installation of 
foundation piles or UXO/MEC detonations 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), Park City Wind must implement additional noise 
mitigation measures prior to installing the next foundation 
installation or UXO/MEC detonation. Initial additional measures may 
include improving the efficacy of the implemented noise mitigation 
technology (e.g., bubble curtain, double bubble curtain) 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 thresholds 
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, NMFS may require additional PSOs be deployed on 
additional platforms with each observer responsible for maintaining 
watch in no more than 180 degrees.
    If acoustic measurements indicate that ranges to thresholds 
corresponding to the Level A harassment and Level B harassment 
thresholds are less than the ranges predicted by modeling (assuming 10 
dB attenuation), Park City Wind may request a modification of the 
clearance and shutdown zones for foundation installation and UXO/MEC 
detonations if additional acoustic modeling is conducted on subsequent 
piles. The number of piles that would have to be monitored would be 
dependent upon site conditions and future turbine placement; however, a 
minimum of three monopiles and two jacket installations (all pin piles 
for each jacket) would have to be monitored. In addition, if any 
subsequent pile installation locations are not represented by the 
previously monitored locations, SFV would 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) as deemed appropriate.
    Park City Wind will submit a SFV Plan to NOAA Fisheries for review 
and approval at least 180 days prior to planned start of pile driving 
and any UXO/MEC detonations. The plan must describe how Park City Wind 
would ensure that the first three monopile foundation installation 
sites and two ESP jacket foundations (all pin piles) sites selected for 
SFV are representative of the rest of the foundation installation 
sites. As described above, each UXO/MEC detonation must be acoustically 
monitored. 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. Park City Wind must also 
provide, as soon as they are available but no later than 48 hours after 
each foundation installation event or UXO/MEC detonation, the initial 
results of the SFV measurements to NMFS in an interim report.
    In addition to identifying how foundation installation and UXO/MEC 
detonation noise levels will be monitored, the SFV plan must also 
include how operational noise of the turbines would be monitored. 
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.

Reporting

    Prior to initiation of project activities, Park City Wind would 
provide a report to NMFS Office of Protected Resources documenting that 
all required training for Park City Wind personnel (i.e., vessel crews, 
vessel captains, PSOs, and PAM operators) has been completed and 
provide the date that each in-water construction activity considered in 
this

[[Page 37675]]

proposed rule (i.e., foundation installation, cable landfall 
construction, marina activities, and HRG surveys) would occur.
    NMFS would require standardized and frequent reporting from Park 
City Wind during the life of the proposed regulations and LOA. All data 
collected relating to the Project would be recorded using industry-
standard software installed on field laptops and/or tablets. Park City 
Wind would be required to submit weekly, monthly and annual reports. 
For all monitoring efforts and marine mammal sightings, the species, 
location, time, and many other factors must be reported to NMFS. The 
specifics of what we require to be reported can be found in the 
regulatory text at the end of this proposed rule, including for all 
real-time acoustic detections of marine mammals which also must be 
reported weekly, monthly, and annually. SFV reporting, as described 
above, would also be required.
    Weekly Report--During foundation installation activities, Park City 
Wind would be required to compile and submit weekly marine mammals and 
pile driving activity reports to NMFS Office of Protected Resources 
that document the daily start and stop of all pile driving activities, 
drilling, UXO/MEC detonations, and HRG activities, the start and stop 
of associated observation periods by PSOs, details on the deployment of 
PSOs, a record of all detections of marine mammals (acoustic and 
visual), any mitigation actions (or if mitigation actions could not be 
taken, provide reasons why), and details on the noise abatement 
system(s) (e.g., bubble rate). 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--Park City Wind would be required to compile and 
submit monthly reports to NMFS Office of Protected Resources that 
include a summary of all information in the weekly reports, including 
project activities carried out in the previous month, vessel transits 
(number, type of vessel, and route), number of piles installed, number 
of UXO/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 Reporting--Park City Wind would be required to submit an 
annual PSO and PAM report to NMFS Office of Protected Resources 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 
Office of Protected Resources within 60 calendar days of NMFS' receipt 
of the draft report, the report would be considered final.
    Final 5-Year Reporting--Park City Wind must submit its draft 5-year 
report(s) to NMFS Office of Protected Resources 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 5-year 
report must be prepared and submitted within 60 calendar days following 
receipt of any NMFS comments on the draft report. If no comments are 
received from NMFS within 60 calendar days of NMFS' receipt of the 
draft report, the report shall be considered final. Information 
contained within this report is described at the beginning of this 
section.
    Situational Reporting--Specific situations encountered during the 
development of the Project would require immediate reporting. If a 
North Atlantic right whale is acoustical detected during 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, including GPS data records, must be submitted to 
[email protected] monthly on the 15th of every month for the 
previous month via ISO standard metadata forms available on the NMFS 
North Atlantic right whale Passive Acoustic Reporting System website at 
https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates.
    If a North Atlantic right whale is observed at any time by PSOs or 
Park City Wind personnel, Park City 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 (https://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. The specifics of what 
NMFS Office of Protected Resources requires to be reported is listed at 
the end of this proposed rule in the regulatory text.
    If a sighting of a stranded, entangled, injured, or dead marine 
mammal occurs, the sighting would be reported to NMFS Office of 
Protected Resources, the NMFS Greater Atlantic Stranding Coordinator 
for the New England/Mid-Atlantic area (866-755-6622 or the Dolphin and 
Whale 911 app), and the U.S. Coast Guard within 24 hours. If the injury 
or death was caused by a project activity, Park City Wind must 
immediately cease all activities until NMFS Office of Protected 
Resources is able to review the circumstances of the incident and 
determine what, if any, additional measures are appropriate to ensure 
compliance with the terms of the LOA. NMFS Office of Protected 
Resources may impose additional measures to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Park City Wind may 
not resume their activities until notified by NMFS Office of Protected 
Resources. The specifics of what NMFS Office of Protected Resources 
requires to be reported is listed at the end of this proposed rule in 
the regulatory text.
    In the event of a vessel strike of a marine mammal by any vessel 
associated with the Project, Park City Wind must immediately report the 
strike incident to the NMFS Office of Protected Resources and the NOAA 
Greater Atlantic Regional Fisheries Office Protected Resources Division 
(GARFO) within and no later than 24 hours. Park City Wind must 
immediately cease all on-water activities until NMFS Office of 
Protected Resources is able to review the circumstances of the incident 
and determine what, if any, additional measures are appropriate to 
ensure compliance with the terms of the LOA. NMFS Office of Protected 
Resources may impose additional measures to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Park City Wind may 
not resume their activities until notified by NMFS. The specifics of 
what NMFS Office of Protected Resources requires to be reported is 
listed at the end of this proposed rule in the regulatory text.
    In the event of any lost gear associated with the fishery surveys, 
Park City Wind must report to the GARFO as soon as

[[Page 37676]]

possible or within 24 hours of the documented time of missing or lost 
gear. This report must include information on any markings on the gear 
and any efforts undertaken or planned to recover the gear.
    Sound Field Verification--Park City Wind would be required to 
submit interim sound field verification reports after each foundation 
installation and UXO/MEC detonation monitored as soon as possible but 
within 48-hours. A final SFV report for foundation installation and 
UXO/MEC detonations would be required within 90 days following 
completion of acoustic monitoring for each activity.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Park City 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 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 Park City 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, Park City 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 of Marine Mammals 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 likely 
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 proposed 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-specific information and 
mitigation measure effectiveness, in group-specific discussions that 
support our negligible impact conclusions for each stock. As described 
above, no serious injury or mortality is expected or proposed for 
authorization for any species or stock.
    The Description of the Specified Activities section describes the 
specified activities proposed by Park City Wind that may result in take 
of marine mammals and an estimated schedule for conducting those 
activities. Park City Wind has provided a realistic construction 
schedule although we recognize schedules may shift for a variety of 
reasons (e.g., weather or supply delays). However, the total amount of 
take would not exceed the 5-year totals and maximum annual total in any 
given year indicated in Tables 33 and 34, respectively.
    We base our analysis and negligible impact determination on the 
maximum number of takes that have the potential to occur and are 
proposed to be authorized annually and across 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 maximum annual 
and 5-year total, alone are only a part of the analysis.
    To avoid repetition, we provide some general analysis in this 
Negligible Impact Analysis and Determination section that applies to 
all the species listed in Table 5 given that some of the anticipated 
effects of Park City 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 Park City 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

[[Page 37677]]

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 foundation and ESP foundation 
installation, which would occur largely within the first 3 years. 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 
(see Tables 32, 33, and 34).
    As described previously, no serious injury or mortality is 
anticipated or proposed for authorization in this rule. Any Level A 
harassment authorized would be in the form of auditory injury (i.e., 
PTS) and not non-auditory injury (e.g., lung injury or gastrointestinal 
injury from UXO/MEC detonation). The amount of harassment Park City 
Wind has requested, and NMFS is proposing to authorize, is based on 
exposure models that consider the outputs of acoustic source and 
propagation models and other data such as frequency of occurrence or 
group sizes. Several conservative parameters and assumptions are 
ingrained into these models, such as assuming forcing functions that 
consider direct contact with piles (i.e., no cushion allowances) and 
application of the highest 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 requested 
and proposed to be authorized also reflects careful consideration of 
other data (e.g., PSO and group size data) and, for Level A harassment 
potential of some large whales, the consideration of mitigation 
measures. For all species, the amount of take proposed to be authorized 
represents the maximum amount of Level A harassment and Level B 
harassment that is likely 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 and Doukara, 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 Park City 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. Southall et al. (2021), Ellison et al. (2012) and Moore and 
Barlow (2013), among others, emphasize the importance of context (e.g., 
behavioral state of the animals, distance from the sound source) in 
evaluating behavioral responses of marine mammals to acoustic sources. 
Harassment of marine mammals may result in behavioral modifications 
(e.g., avoidance, temporary cessation of foraging or communicating, 
changes in respiration or group dynamics, masking) or may result in 
auditory impacts such as hearing loss. In addition, some of the lower 
level physiological stress responses (e.g., change in respiration, 
change in heart rate) discussed previously would likely co-occur with 
the behavioral modifications, although these physiological responses 
are more difficult to detect and fewer data exist relating these 
responses to specific received levels of sound. Takes by Level B 
harassment, then, may have a stress-related physiological component as 
well; however, we would not expect Park City 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 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 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 one day or recur on subsequent days 
(Southall et al., 2007) due to diel and lunar patterns in diving and 
foraging behaviors observed in many cetaceans (Baird et al., 2008; 
Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 2014). It 
is important to note the water depth in the Project area is shallow 
(ranging from 2 m in the OECC to 62 m in the lease area) and deep 
diving species, such as sperm whales, are not expected to be engaging 
in deep foraging dives when exposed to noise above NMFS harassment 
thresholds during the specified activities. Therefore, we do not 
anticipate impacts to deep foraging behavior to be impacted by the 
specified activities.
    It is also important to identify that the estimated number of takes 
does not necessarily equate to the number of individual animals the 
Project expects to harass (which is lower), but rather to the instances 
of take (i.e., exposures above the Level B harassment thresholds) that 
may occur. These instances may represent either brief exposures of 
seconds for UXO/MEC detonations, seconds to minutes for HRG surveys, 
or, in some cases, longer durations of exposure within 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

[[Page 37678]]

individual, whereas for non-migrating species with larger amounts of 
predicted take, we expect that the total anticipated takes represent 
exposures of a smaller number of individuals of which some would be 
taken across multiple days.
    For the Project, impact pile driving of foundation piles is most 
likely to result in a higher magnitude and severity of behavioral 
disturbance than other activities (i.e., vibratory pile driving, 
drilling, UXO/MEC detonations, and HRG surveys). Impact pile driving 
has higher source levels and longer durations (on an annual basis) than 
vibratory pile driving, drilling and HRG surveys. HRG survey equipment 
also produces much higher frequencies than pile driving, resulting in 
minimal sound propagation. While UXO/MEC detonations may have higher 
source levels, impact pile driving is planned for longer durations 
(i.e., a maximum of 10 UXO/MEC detonations are planned, which would 
result in only instantaneous exposures). While foundation installation 
impact pile driving is anticipated to be most impactful for these 
reasons, impacts are minimized through implementation of mitigation 
measures, including use of a sound attenuation system, soft-starts, the 
implementation of clearance zones that would facilitate a delay pile 
driving commencement, and implementation of shutdown zones. All these 
measures are designed to avoid or minimize harassment. For example, 
given sufficient notice through the use of soft-start, marine mammals 
are expected to move away from a sound source that is annoying prior to 
becoming exposed to very loud noise levels. The requirement to couple 
visual monitoring and PAM before and during all foundation installation 
and UXO/MEC detonations would increase the overall capability to detect 
marine mammals than one method alone. Measures such as the requirement 
to apply sound attention devices and implement clearance zones also 
apply to UXO/MEC detonation(s), which also have the potential to elicit 
more severe behavioral reactions in the unlikely event that an animal 
is relatively close to the explosion in the instant that it occurs; 
hence, severity of behavioral responses are expected to be lower than 
would be the case without mitigation.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if 
some smaller subset of the takes are in the form of a longer (several 
hours or a day) and more severe response, if they are not expected to 
be repeated over numerous or sequential days, impacts to individual 
fitness are not anticipated. Also, the effect of disturbance is 
strongly influenced by whether it overlaps with biologically important 
habitats when individuals are present--avoiding biologically important 
habitats will provide opportunities to compensate for reduced or lost 
foraging (Keen et al., 2021). Nearly all studies and experts agree that 
infrequent exposures of a single day or less are unlikely to impact an 
individual's overall energy budget (Farmer et al., 2018; Harris et al., 
2017; King et al., 2015; National Academy of Science (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 the Project'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, drilling, 
and UXO/MEC detonation are broadband noise sources but generate sounds 
in the lower frequency ranges (with most of the energy below 1-2 kHz, 
but with a small amount energy ranging up to 20 kHz); therefore, in 
general and all else being equal, we would anticipate the potential for 
TTS is higher in low-frequency cetaceans (i.e., mysticetes) than other 
marine mammal hearing groups and would be more likely to occur in 
frequency bands in which they communicate. However, we would not expect 
the TTS to span the entire communication or hearing range of any 
species given the frequencies produced by these activities do not span 
entire hearing ranges for any particular species. Additionally, though 
the frequency range of TTS that marine mammals might sustain would 
overlap with some of the frequency ranges of their vocalizations, the 
frequency range of TTS from the Project's pile driving, drilling, and 
UXO/MEC detonation activities would not typically span the entire 
frequency range of one vocalization type, much less span all types of 
vocalizations or other critical auditory cues for any given species. 
However, the mitigation measures proposed by the Project 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 previously 
(refer back to Estimated Take of Marine Mammals). 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 of the Specified Activities on 
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 the project's activities would 
result in behavioral changes or other impacts that would impact any 
individual's (of any hearing sensitivity) reproduction or survival.

Permanent Threshold Shift (PTS)

    Park City Wind has requested, and NMFS proposes 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 (Table 34). The only 
activities incidental to which we anticipate PTS may occur is from 
exposure to impact pile driving and UXO/MEC detonations, which produce 
sounds that are both

[[Page 37679]]

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. Park City Wind estimates 10 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 UXOs/
MECs would likely be less than what is estimated here. In addition, 
during impact pile driving, given sufficient notice through use of 
soft-start prior to implementation of full hammer energy during impact 
pile driving, marine mammals are expected to move away from a sound 
source that is annoying prior to it resulting in severe PTS.

Auditory Masking or Communication Impairment

    The ultimate potential impacts of masking on an individual are 
similar to those discussed for TTS (e.g., decreased ability to 
communicate, forage effectively, or detect predators), but an important 
difference is that masking only occurs during the time of the signal, 
versus TTS, which continues beyond the duration of the signal. 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, for multiple days per year. Masking 
is fundamentally more of a concern at lower frequencies (which are pile 
driving dominant frequencies), because low frequency signals propagate 
significantly further than higher frequencies and because they are more 
likely to overlap both the narrower low frequency calls of mysticetes, 
as well as many non-communication cues related to fish and invertebrate 
prey, and geologic sounds that inform navigation. However, the area in 
which masking would occur for all marine mammal species and stocks 
(e.g., predominantly in the vicinity of the foundation pile being 
driven) is small relative to the extent of habitat used by each species 
and stock. In summary, the nature of the Project'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 pile driving, drilling, and UXO/MEC 
detonation would further limit the degree of impact (again noting UXO/
MEC detonation would be limited to 10 events over 2 years). Behavioral 
changes in prey in response to construction activities could 
temporarily impact marine mammals' foraging opportunities in a limited 
portion of the foraging range but, because of the relatively small area 
of the habitat that may be affected at any given time (e.g., around a 
pile being driven), the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Cable presence 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).
    As discussed in the Potential Effects of the Specified Activities 
on Marine Mammals and their Habitat section, the Project would consist 
of no more than 132 foundations in the lease area. While there are 
likely to be oceanographic impacts from the presence and operation of 
the Project, meaningful oceanographic impacts relative to 
stratification and mixing that would significantly affect marine mammal 
habitat and prey over large areas in key foraging habitats during the 
effective period of the proposed rule are not anticipated (which 
considers 2-3 years

[[Page 37680]]

of turbine operation). For these reasons, if oceanographic features are 
affected by wind farm operation during the course of the proposed rule, 
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 pile driving and drilling of foundation piles (i.e., 
foundation installation), and UXO/MEC detonations, 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 (impact pile driving only); (7) use of 
noise attenuation technology; (8) maintaining situational awareness of 
marine mammal presence through the requirement that any marine mammal 
sighting(s) by Project personnel must be reported to PSOs; and (9) 
sound field verification monitoring.
    When foundation installation or UXO/MEC detonation is conducted, 
Park City Wind is committed to reducing the noise levels generated 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 during impact pile driving would allow 
animals to move away from (i.e., avoid) the sound source prior to 
applying higher hammer energy levels needed to install the pile (Park 
City 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 for all activities, would reduce the 
magnitude and severity of marine mammal take. The use of multiple PSOs, 
PAM, and maintaining awareness of marine mammal sightings reported in 
the region would aid in detecting marine mammals triggering the 
implementation of the mitigation measures. Further, UXO/MEC detonation 
may only occur when all other possible means of removal have been 
deemed insufficient. The reporting requirements, including SFV 
reporting, will assist NMFS in identifying if impacts beyond those 
analyzed in this proposed rule are occurring, potentially leading to 
the need to enact adaptive management measures in addition to the 
proposed mitigation measures.

Mysticetes

    Six mysticete species (comprising six stocks) of cetaceans (North 
Atlantic right whale, humpback whale, fin whale, sei whale, minke 
whale, and blue whale) may be taken by harassment. These species, to 
varying extents, utilize coastal New England waters, including the 
project area, for the purposes of migration, foraging, and socializing. 
Mysticetes are in the Low-Frequency hearing group.
    Behavioral data on mysticete reactions to pile driving noise are 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying, which is less likely for 
mysticetes in this area), disruption of foraging activities (if they 
are occurring in the area), local masking around the source, associated 
stress responses, and impacts to prey, as well as TTS or PTS in some 
cases.
    Mysticetes encountered in the Project area are expected to be 
migrating through and/or foraging within the project area. The extent 
to which an animal engages in these behaviors in the area is species-
specific and varies seasonally. Many mysticetes are expected to 
predominantly be migrating through the project area towards or from 
these feeding habitats. While we have acknowledged above that 
mortality, hearing impairment, or displacement of mysticete prey 
species may result locally from impact pile driving and UXO/MEC 
detonations, given the very short duration of and broad availability of 
prey species in the area and the availability of alternative suitable 
foraging habitat for the mysticete species most likely to be affected, 
any impacts on mysticete foraging 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 
relatively temporary in nature.
    The potential for repeated exposures is dependent upon the 
residency time of whales, with migratory animals unlikely to be exposed 
on repeated occasions and animals remaining in the area to be more 
likely exposed repeatedly. 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 34) 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 
across multiple days.
    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 Park City 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 the project area, including fin whales foraging in the 
small fin whale feeding BIA that partially overlaps the project area, 
to affect the fitness of any large whales.
    Blue, fin, humpback, minke, and sei whales are the only mysticete 
species for which PTS is anticipated and proposed to be authorized. As 
described previously, PTS for mysticetes from some project activities 
may overlap frequencies used for communication, navigation, or 
detecting prey. However, given the nature and duration of the activity, 
the mitigation measures, and likely avoidance behavior, any PTS is 
expected to be of a small degree, would be limited to frequencies where 
pile driving noise is concentrated (i.e., only a small subset of their 
expected hearing range) and would not be expected to impact 
reproductive success or survival.

[[Page 37681]]

North Atlantic Right Whales
    North Atlantic right whales are listed as endangered under the ESA 
and as both Depleted and Strategic under the MMPA. As described in the 
Effects to Marine Mammals and Their Habitat section, North Atlantic 
right whales are threatened by a low population abundance, higher than 
average mortality rates, and lower than average reproductive rates. 
Recent studies have reported individuals showing high stress levels 
(e.g., Corkeron et al., 2017) and poor health, which has further 
implications on reproductive success and calf survival (Christiansen et 
al., 2020; Stewart et al., 2021; Stewart et al., 2022). As described 
below, a UME has been designated for North Atlantic right whales. Given 
this, the status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis and 
consideration. No serious injury or mortality, nor Level A harassment, 
is anticipated or proposed for authorization for this species.
    The rule would allow for the authorization of up to 293 takes, by 
Level B harassment only, over the five-year period, with a maximum 
annual allowable take of 111 (equating to approximately 32.8 percent of 
the stock abundance, if each take were considered to be of a different 
individual), with far lower numbers than that expected in the years 
without foundation installation (e.g., years when only HRG surveys 
would be occurring). The project area is known as a migratory corridor 
for North Atlantic right whales and given the nature of migratory 
behavior (e.g. continuous path), we anticipate that many of the 
instances of take would not represent repeat takes of any individual. 
However, changing distribution of right whales, and observations of 
increased residency times in the broader southern New England area 
indicate that some subset of the individual whales exposed could be 
taken up to a few times annually.
    Southern New England, including the project area, may be a stopover 
site for migrating North Atlantic right whales moving to or from 
southeastern calving grounds. Qualitative observations include animals 
feeding and socializing (Quinatna-Rizzo et al. 2021). 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). Right whale distribution 
did shift to the west, closer to the project area, into the RI/MA WEA 
in the spring (March-May). Quintana-Rizzo et al. (2021) found that 
approximately 23 percent of the 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.
    In general, North Atlantic right whales in the project area are 
expected to be engaging in migratory behavior. Given the species' 
migratory behavior in the project area, we anticipate individual whales 
would be typically migrating through the area during most months when 
foundation installation and UXO/MEC detonation would occur (given the 
seasonal restrictions on foundation installation and UXO/MEC 
detonation, 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 also 
occur during periods when North Atlantic right whales are using the 
habitat for migration. It is important to note the activities occurring 
from December through May that may impact North Atlantic right whale 
would be primarily HRG surveys, which would not result in very high 
received levels. Across all years, if an individual were to be exposed 
during a subsequent year, the impact of that exposure is likely 
independent of the previous exposure given the duration between 
exposures.
    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 Park City 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, foundation 
installation is likely to result in the highest amount of annual take 
and is of greatest concern given loud source levels. This activity 
would likely be limited to up to 113 days over a maximum of 3 years, 
during times when, based on the best available scientific data, North 
Atlantic right whales are less frequently encountered and are likely to 
be primarily migrating. 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 Park City Wind are expected to be sufficiently 
low-level and localized to specific areas as to not meaningfully impact 
important behaviors such as migratory behavior of North Atlantic right 
whales. These takes are expected to result in temporary behavioral 
reactions, such as slight displacement (but not abandonment) of 
migratory habitat or temporary cessation of feeding. Further, given 
these exposures are generally expected to occur to different individual 
right whales migrating through (i.e., many individuals would not be 
impacted on more than one day in a year), with some subset potentially 
being exposed on no more than a few days within the year, they are 
unlikely to result in energetic consequences that could affect 
reproduction or survival of any individuals.
    Overall, NMFS expects that any harassment of North Atlantic right 
whales incidental to the specified activities would not result in 
changes to their migration patterns or foraging success, as only 
temporary avoidance of an area during construction is expected to 
occur. As described previously, North Atlantic right whales migrating 
through and/or foraging in these areas are not expected to remain in 
this habitat for extensive durations, relative to habitats to nearby or 
to the north such as Nantucket and Martha's Vineyard or the Great South 
Channel (known core foraging habitats) (Quintana-Rizzo et al., 2021), 
and any temporarily displaced animals would be able to return to or 
continue to travel through and forage in these areas once activities 
have ceased.
    Although acoustic masking may occur in the vicinity of the 
foundation installation activities, based on the acoustic 
characteristics of noise associated with pile driving (e.g., frequency 
spectra, short duration of exposure) and construction surveys (e.g., 
intermittent signals), NMFS expects masking effects to be minimal

[[Page 37682]]

(e.g., impact or vibratory pile driving) to none (e.g., HRG surveys). 
In addition, masking would likely only occur during the period of time 
that a North Atlantic right whale is in the relatively close vicinity 
of pile driving, which is expected to be intermittent within a day, and 
confined to the months in which North Atlantic right whales are at 
lower densities and primarily moving through the area, anticipated 
mitigation effectiveness, and likely avoidance behaviors. TTS is 
another potential form of Level B harassment that could result in brief 
periods of slightly reduced hearing sensitivity affecting behavioral 
patterns by making it more difficult to hear or interpret acoustic cues 
within the frequency range (and slightly above) of sound produced 
during impact pile driving; however, any TTS would likely be of low 
amount, limited duration, and limited to frequencies where most 
construction noise is centered (below 2 kHz). NMFS expects that right 
whale hearing sensitivity would return to pre-exposure levels shortly 
after migrating through the area or moving away from the sound source.
    As described in the Potential Effects 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. 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 North 
Atlantic right whales would be similar to that of gray whales (Tyack et 
al., 1983), on the order of hundreds of meters up to 1 to 2 km. This 
diversion from a migratory path otherwise uninterrupted by the 
Project's activities is not expected to result in meaningful energetic 
costs that would impact annual rates of recruitment of survival. NMFS 
expects that North Atlantic right whales would be able to avoid areas 
during periods of active noise production while not being forced out of 
this portion of their habitat.
    North Atlantic right whale presence in the project area is year-
round. However, abundance during summer months is lower compared to the 
winter months with spring and fall serving as ``shoulder seasons'' 
wherein abundance waxes (fall) or wanes (spring). Given this year-round 
habitat usage, in recognition that where and when whales may actually 
occur during project activities is unknown as it depends on the annual 
migratory behaviors, Park City 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 attenuation systems and reduced temporal overlap of 
project activities and North Atlantic right whales). This would further 
ensure that the number of takes by Level B harassment that are 
estimated to occur are not expected to affect reproductive success or 
survivorship by detrimental impacts to energy intake or cow/calf 
interactions during migratory transit. However, even in consideration 
of recent habitat-use and distribution shifts, Park City Wind would 
still be installing foundations when the presence of North Atlantic 
right whales is expected to be lower.
    As described in the Description of Marine Mammals in the Area of 
Specified Activities section, Park City 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. The Project lease area is 
relatively small compared with the migratory BIA area (approximately 
411 km\2\ for OCS-A 0534 and 262 km\2\ in OCS-A 0501 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. 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 is the seasonal moratorium on all 
foundation installation activities from January 1 through April 30 
(with no impact pile driving or drilling scheduled in December and no 
vibratory pile driving in May and December) 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). UXO/MEC detonations would also be restricted from 
December through May. 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.
    Pile driving, drilling, and UXO/MEC detonations may only begin in 
the absence of North Atlantic right whales (based on visual and passive 
acoustic monitoring). If pile driving, drilling, or UXO/MEC detonations 
have commenced, NMFS anticipates North Atlantic right whales would 
avoid the area, utilizing nearby waters to carry on pre-exposure 
behaviors. However, foundation installation activities must be shut 
down if a North Atlantic right whale is sighted at any distance unless 
a shutdown is not feasible due to risk of injury or loss of life. 
Shutdown may occur anywhere if North Atlantic right whales are seen 
within or beyond the Level B harassment zone, further minimizing the 
duration and intensity of exposure. NMFS anticipates that if North 
Atlantic right whales go undetected and they are exposed to foundation 
installation or UXO/MEC detonation noise, it is unlikely a North 
Atlantic right whale would approach the sound source 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, 
Park City

[[Page 37683]]

Wind proposed, and NMFS is proposing to require, the combination of PAM 
and visual observers. Park City Wind proposed, and NMFS is proposing to 
require, communication protocols with other Project vessels, and other 
heightened awareness efforts (e.g., daily monitoring of North Atlantic 
right whale sighting databases) such that as a North Atlantic right 
whale approaches the source (and thereby could be exposed to higher 
noise energy levels), PSO detection efficacy would increase, the whale 
would be detected, and a delay to commencing foundation installation or 
shutdown (if feasible) would occur. In addition, the implementation of 
a soft-start for impact pile driving would provide an opportunity for 
whales to move away from the source if they are undetected, reducing 
received levels. The UXO/MEC detonations mitigation measures described 
above would further reduce the potential to be exposed to high received 
levels.
    For HRG surveys, the maximum distance to the Level B harassment 
threshold is 178 m. The estimated take, by Level B harassment only, 
associated with HRG surveys is to account for any North Atlantic right 
whale sightings PSOs may miss when HRG acoustic sources are active. 
However, because of the short maximum distance to the Level B 
harassment threshold, 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 500 m of the source, any 
exposure to noise levels above the harassment threshold (if any) would 
be very brief. To further minimize exposures, ramp-up of sub-bottom 
profilers must be delayed during the clearance period if PSOs detect a 
North Atlantic right whale (or any other ESA-listed species) within 500 
m of the acoustic source. With implementation of the 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.
    Given the documented habitat use within the area, the majority of 
the individuals taken would be impacted on only one day in a year, with 
a small subset potentially impacted on no more than a few days a year 
and, further, low level impacts are generally expected from any North 
Atlantic right whale exposure. 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.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by Level B harassment 
only) anticipated and proposed for authorization would have a 
negligible impact on the North Atlantic right whale.
Blue Whale
    The blue whale, including the Western North Atlantic stock, is 
listed as Endangered under the ESA, and as both Depleted and Strategic 
under the MMPA. There are no known areas of specific biological 
importance in or around the project area, nor are there any UMEs. The 
actual abundance of the stock is likely significantly greater than what 
is reflected in each SAR because, as noted in the SARs, the most recent 
population estimates are primarily based on surveys conducted in U.S. 
waters and the stock's range extends well beyond the U.S. EEZ. No 
serious injury or mortality is anticipated or proposed for 
authorization for this species.
    The rule would allow for the authorization of up to 6 takes, by 
harassment only, over the five-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment, would be 1 
and 2, respectively (combined, this annual take (n=3) equates to 
approximately 0.7 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HR surveys would be occurring). Based on the migratory 
nature of blue whales and the fact that there are neither feeding nor 
reproductive areas documented in or near the project area, and in 
consideration of the very low number of predicted annual takes, it is 
unlikely that the predicted instances of takes would represent repeat 
takes of any individual--in other words, each take likely represents 
one whale exposed on one day within a year.
    With respect to the severity of those individual takes by 
behavioral Level B harassment, we would anticipate impacts to be 
limited to low-level, temporary behavioral responses with avoidance and 
potential masking impacts in the vicinity of the turbine installation 
to be the most likely type of response. Any potential PTS or TTS would 
be concentrated at half or one octave above the frequency band of pile 
driving noise (most sound is below 2 kHz) which does not include the 
full predicted hearing range of sei whales. Any hearing ability 
temporarily impaired from TTS is anticipated to return to pre-exposure 
conditions shortly after the exposures cease (e.g., if the animal moves 
away or the source stops). Any avoidance of the project area due to the 
Project's activities would be expected to be temporary.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on the Western North Atlantic stock of blue whales.
Fin Whales
    The fin whale, including the Western North Atlantic stock, is 
listed as Endangered under the ESA, and as both Depleted and Strategic 
under the MMPA. No UME has been designated for this species or stock. 
No serious injury or mortality is anticipated or proposed for 
authorization for this species.
    The rule would allow for the authorization of up to 1,293 takes, by 
harassment only, over the five-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment, would be 
20 and 575, respectively (combined, this annual take (n=595) equates to 
approximately 8.7 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HR surveys would be occurring).

[[Page 37684]]

Given the project overlaps a small portion of a fin whale feeding BIA 
active in the months of the project, and the New England is generally 
considered a feeding area, it is likely that some subset of the 
individual whales exposed could be taken several times annually.
    Level B harassment is expected to be in the form of behavioral 
disturbance, primarily resulting in avoidance of the project area where 
foundation installation is occurring, and some low-level TTS and 
masking that may limit the detection of acoustic cues for relatively 
brief periods of time. Any potential PTS would be minor (limited to a 
few dB) and any TTS would be of short duration and concentrated at half 
or one octave above the frequency band of pile driving noise (most 
sound is below 2 kHz) which does not include the full predicted hearing 
range of fin whales.
    As described previously, the project area slightly overlaps a small 
fin whale feeding BIA that is active from March to October. Foundation 
installations and UXO/MEC detonations have seasonal work restrictions 
such that the temporal overlap between these project activities and the 
active BIA timeframe would exclude the months of March or April. We 
anticipate that if foraging is occurring in the project area and 
foraging whales are exposed to noise levels of sufficient strength, 
they could temporarily cease foraging and move elsewhere.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on the Western North Atlantic stock of fin whales.
Humpback Whales
    Humpback whales potentially impacted by the Project's activities do 
not belong to a DPS that is listed as threatened or endangered under 
the ESA, but are designated as Strategic under the MMPA. 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 40 percent 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.
    The rule would allow for the authorization of up to 790 takes, by 
harassment only, over the five-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment, would be 
16 and 330, respectively (combined, this annual take (n=346) equates to 
approximately 24.8 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HR surveys would be occurring). Given that feeding is 
considered the principal activity of humpback whales in New England 
waters, it is likely that some subset of the individual whales exposed 
could be taken several times annually.
    Among the activities analyzed, impact pile driving is likely to 
result in the highest amount of Level A harassment annual take of 
humpback whales (16 takes by Level A harassment for construction 
schedule B; 3 annual takes by Level A harassment for UXO/MEC 
detonations). The maximum amount of annual take proposed to be 
authorized, by Level B harassment, is highest for vibratory pile 
driving under construction schedule B (295).
    Humpback whales, similar to other baleen whales, use southern New 
England waters for foraging. Foraging animals tend to remain in the 
area for extended durations to capitalize on the food sources. For 
example, Brown et al. (2022) examined humpback whale occurrence in the 
New York Bight area, which is located south of the project area but 
provides similar foraging grounds, and demonstrated that humpback 
whales exhibit extended occupancy (mean 37.6 days) in the Bight area 
and were likely to return from one year to the next (mean 31.3 
percent). Whales were also seen at a variety of other sites in the New 
York Bight within the same year, suggesting that they may occupy this 
broader area throughout the feeding season. Assuming humpback whales 
who are foraging in southern New England waters within the project area 
behave similarly, we expect that the maximum annual instances of 
predicted take by Level A harassment and Level B harassment, 
respectively, would consist of individuals exposed on multiple days if 
they are utilizing the area as foraging habitat. Also similar to other 
baleen whales, if migrating, we expect that individuals exposed to 
noise levels from the Project above the harassment thresholds once 
during migration through the project area.
    For all the reasons described in the Mysticetes section above, we 
anticipate any potential PTS and TTS would be concentrated at 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.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on the Gulf of Maine stock of humpback whales.
Minke Whales
    The minke whale, including the Canadian East Coast stock, is not 
listed under the ESA, nor as Depleted under the MMPA. There are no 
known areas of specific biological importance in or adjacent to the 
project area, and no UME has been designated for this species or stock. 
No serious injury or mortality is anticipated or proposed for 
authorization for this species.
    The rule would allow for the authorization of up to 2,612 takes, by 
harassment only, over the five-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment, would be 
85 and 1,042, respectively (combined, this annual take (n=1,127) 
equates to approximately 5.1 percent of the stock abundance, if each 
take were considered to be of a different individual), with far lower 
numbers than that expected in the years without foundation installation 
(e.g., years when only HR surveys would be occurring). Because minke 
whales are migratory and their known feeding areas are east and north 
of the project area, they would be more likely to be moving through 
(with each take representing a separate individual), though it is

[[Page 37685]]

possible that some subset of the individual whales exposed could be 
taken up to a few times annually.
    There is a feeding BIA from March through November to the north and 
east of the project area (Southwestern Gulf of Maine and George's Bank, 
54,341 km\2\). The BIA does not overlap with 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. 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 diseases. This event does 
not provide cause for concern regarding population level impacts, as 
the likely population abundance is greater than 21,000 whales.
    We anticipate the impacts of this harassment to follow those 
described in the general Mysticetes section above.
    Any potential PTS would be minor (limited to a few dB) and any TTS 
would be of short duration and concentrated at half or one octave above 
the frequency band of pile driving noise (most sound is below 2 kHz) 
which does not include the full predicted hearing range of minke 
whales. Level B harassment would be temporary, with primary impacts 
being temporary displacement of the project area but not abandonment of 
any migratory or foraging behavior. For these reasons, we have 
preliminarily determined, in consideration of all of the effects of the 
Project's activities combined, that the proposed authorized take would 
have a negligible impact on the Canadian East Coast stock of minke 
whales.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on the Canadian Eastern Coastal stock of minke whales.
Sei Whales
    The sei whale, including the Nova Scotia stock, is listed as 
Endangered under the ESA, and as both Depleted and Strategic under the 
MMPA. There are no known areas of specific biological importance in or 
adjacent to the project area, nor has a UME been designated for this 
species or stock. No serious injury or mortality is anticipated or 
proposed for authorization for this species.
    The rule would allow for the authorization of up to 146 takes, by 
harassment only, over the five-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment, would be 2 
and 53, respectively (combined, this annual take (n=55) equates to 
approximately 0.9 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HR surveys would be occurring). Because sei whales are 
migratory and their known feeding areas are east and north of the 
project area, they would be more likely to be moving through (with each 
take representing a separate individual), though it is possible that 
some subset of the individual whales exposed could be taken up to a few 
times annually.
    There is a feeding BIA (Gulf of Maine, 56,609 km\2\) to the far 
east and to the north of the project area from May-November, the 
project area does not overlap with the BIA. There are no UMEs. The 
actual abundance of this stock is likely significantly greater than 
what is reflected in each SAR because, as noted in the SARs, the most 
recent population estimate is primarily based on surveys conducted in 
U.S. waters and the stock's range extends well beyond the U.S. 
Exclusive Economic Zone (EEZ).
    To a small degree, sei whales may forage in the project area, 
although the currently identified foraging habitats (BIAs) are 
significantly further away from the project area by a few hundred 
kilometers (LaBrecque et al., 2015). With respect to the severity of 
those individual takes by behavioral Level B harassment, we would 
anticipate impacts to be limited to low-level, temporary behavioral 
responses with avoidance and potential masking impacts in the vicinity 
of the turbine installation to be the most likely type of response. Any 
potential PTS and TTS would likely be concentrated at half or one 
octave above the frequency band of pile driving noise (most sound is 
below 2 kHz) which does not include the full predicted hearing range of 
sei whales. Moreover, any TTS would be temporary. Any avoidance of the 
project area due to the Project's activities would be expected to be 
temporary.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on the Nova Scotia stock of sei whales.

Odontocetes

    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below. Odontocetes include 
dolphins, porpoises, and all other whales possessing teeth and we 
further divide them into the following subsections: sperm whales, small 
whales and dolphins, and harbor porpoise. These sub-sections include 
more specific information, as well as conclusions for each stock 
represented.
    All of the takes of odontocetes proposed for authorization 
incidental to the Project's specified activities are by pile driving, 
drilling, UXO/MEC detonations, and HRG surveys. No serious injury or 
mortality is anticipated or proposed. We anticipate that, given ranges 
of individuals (i.e., that some individuals remain within a small area 
for some period of time), and non-migratory nature of some odontocetes 
in general (especially as compared to mysticetes), these takes are more 
likely to represent multiple exposures of a smaller number of 
individuals than is the case for mysticetes, though some takes may also 
represent one-time exposures to an individual.
    Foundation installation is likely to disturb odontocetes to the 
greatest extent, compared to UXO/MEC detonations and HRG surveys. While 
we do expect animals to avoid the area during foundation installation 
and UXO/MEC detonations, their habitat range is extensive compared to 
the area ensonified during these activities. In addition, as described 
above, UXO/MEC detonations are instantaneous; therefore, any 
disturbance would be very limited in time.
    As described earlier, Level B harassment may include direct 
disruptions in behavioral patterns (e.g., avoidance, changes in 
vocalizations (from masking) or foraging), as well as those associated 
with stress responses or TTS. Odontocetes are highly mobile species 
and, similar to mysticetes, NMFS expects any avoidance behavior to be 
limited to the area near the sound source. While masking could occur 
during foundation installation, it would only occur in the vicinity of 
and during

[[Page 37686]]

the duration of the activity, and would not generally occur in a 
frequency range that overlaps most odontocete communication or any 
echolocation signals. The mitigation measures (e.g., use of sound 
attenuation systems, implementation of clearance and shutdown zones) 
would also minimize received levels such that the severity of any 
behavioral response would be expected to be less than exposure to 
unmitigated noise exposure.
    Any masking or TTS effects are anticipated to be of low-severity. 
First, the frequency range of pile driving, the most impactful activity 
conducted by Park City 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 for the Project. As 
described above, recent studies suggest odontocetes have a mechanism to 
self-mitigate (i.e., reduce hearing sensitivity) the impacts of noise 
exposure, which could potentially reduce TTS impacts. Any masking or 
TTS is anticipated to be limited and would typically only interfere 
with communication within a portion of an odontocete's range and as 
discussed earlier, the effects would only be expected to be of a short 
duration and, for TTS, a relatively small degree.
    Furthermore, odontocete echolocation occurs predominantly at 
frequencies significantly higher than low frequency construction 
activities. Therefore, there is little likelihood that threshold shift 
would interfere with feeding behaviors. For HRG surveys, the sources 
operate at higher frequencies than foundation installation activities 
and UXO/MEC detonations. However, sounds from these sources attenuate 
very quickly in the water column, as described above. Therefore, any 
potential for PTS and TTS and masking is very limited. Further, 
odontocetes (e.g., common dolphins, spotted dolphins, bottlenose 
dolphins) have demonstrated an affinity to bow-ride actively surveying 
HRG surveys. Therefore, the severity of any harassment, if it does 
occur, is anticipated to be minimal based on the lack of avoidance 
previously demonstrated by these species.
    The waters off the coast of Massachusetts are used by several 
odontocete species. However, none except the sperm whale are listed 
under the ESA and there are no known habitats of particular importance. 
In general, odontocete habitat ranges are far-reaching along the 
Atlantic coast of the U.S., and the waters off of New York, including 
the project area, do not contain any particularly unique odontocete 
habitat features.
Sperm Whales
    The sperm whale, including the North Atlantic stock, is listed as 
endangered under the ESA, and as both Depleted and Strategic under the 
MMPA. The 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 across its 
range (i.e., commercial whaling) has been eliminated. Additionally, 
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 or serious injury is anticipated or proposed to be 
authorized for this species.
    The rule would allow for the authorization of up to 297 takes, by 
harassment only, over the five-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment, would be 2 
and 140, respectively (combined, this annual take (n=142) equates to 
approximately 3.3 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HR surveys would be occurring). Given sperm whale's 
preference for deeper waters, especially for feeding, it is unlikely 
that individuals would remain in the project area for multiple days, 
and therefore the estimated takes likely represent exposures of 
different individuals on one day each annually.
    If sperm whales do happen to be present in the project area during 
any activities related to the Project, they would likely be only 
transient visitors and not engaging in any significant behaviors. 
Further, the potential for PTS and TSS is low for reasons described in 
the general Odontocete section but, if it does occur, any hearing shift 
would be small and, in the case of TTS, would be of a short duration. 
Because whales are not expected to be foraging in the project area, any 
TTS is not expected to interfere with foraging behavior.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on the North Atlantic stock of sperm whales.
Dolphins and Small Whales (Including Delphinids, Beaked Whales, and 
Dwarf and Pygmy Sperm Whales)
    The twenty-six species and stocks included in this group (which are 
indicated in Table 5 in the Delphinidae, Ziphiidae, and Kogiidae 
families) are not listed under the ESA, however, Pantropical spotted 
dolphins and spinner dolphins are listed as Depleted under the MMPA and 
Short-finned pilot whales are listed as Strategic under the MMPA. There 
are no known areas of specific biological importance in or around the 
project area for any of these species, nor has a UME been designated 
for any. No serious injury or mortality is anticipated or proposed for 
authorization for this species.
    The eighteen Delphinid species with take proposed for authorization 
for the Project are Atlantic spotted dolphin, Atlantic white-sided 
dolphin, bottlenose dolphin, Clymene dolphin, common dolphin, long-
finned pilot whale, short-finned pilot whale, Risso's dolphin, false 
killer whale, Fraser's dolphin, killer whale, melon-headed whale, 
pantropical spotted dolphin, pygmy killer whale, rough-toothed dolphin, 
spinner dolphin, striped dolphin, and white-beaked dolphin.
    Many of these Delphinid species are rare for the project area and 
whose preferred habitat is at much deeper water depths or different 
water temperatures than what are found within the project area. For 
instance, the Clymene dolphin, false killer whale, Fraser's dolphin, 
melon-headed whale, pantropical spotted dolphin, pygmy killer whale, 
rough-toothed dolphin, and spinner dolphin prefer tropical to 
subtropical waters but have, on occasion, been sighted in deep waters 
at or beyond the continental shelf break in the New England area during 
the summer months (Hayes et al., 2019; Hayes et al., 2020). Striped 
dolphins are found in warm-temperate to tropical waters but prefer 
continental slope

[[Page 37687]]

waters offshore to the Gulf Stream, when in the New England area they 
have only been sighted at water depths deeper than 900 m (Hayes et al., 
2020). White-beaked dolphins prefer colder waters and are found more 
northerly than the project area in the western Gulf of Maine and around 
Cape Cod (Hayes et. al, 2020). Killer whales, a rarity in the New 
England area, prefer much deeper and colder waters than those in the 
New England area (Waring et al., 2015).
    For these eighteen Delphinid species, the rule would allow for the 
authorization of up to between 10 and 86,316 takes (depending on 
species), by harassment only, over the five-year period. The maximum 
annual allowable take for these species by Level A harassment and Level 
B harassment, would range from 0 to 9 and 4 to 41,230, respectively 
(combined, this annual take (n= 4 to 41,239) equates to approximately 
<0.1 to 23.9 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HR surveys would be occurring).
    For common dolphins, given the higher number of takes relative to 
the stock abundance, while some of the takes likely represent exposures 
of different individuals on one day a year, it is likely that some 
subset of the individuals exposed could be taken several times 
annually. For Atlantic spotted dolphin, Atlantic white-sided dolphin, 
Bottlenose dolphin, Long and Short-finned pilot whale, and Risso's 
dolphin, given the number of takes, while many of the takes likely 
represent exposures of different individuals on one day a year, some 
subset of the individuals exposed could be taken up to a few times 
annually. For the remaining Delphinids, given they are considered rare 
or uncommon in the area, it is unlikely that individuals would remain 
in the project area for multiple days, and therefore the estimated 
takes likely represent exposures of different individuals on one day 
each annually.
    The six Ziphiidae species with take proposed for authorization for 
the Project are Cuvier's beaked whale, Blainville's beaked whale, 
Gervais' beaked whale, Sowerby's beaked whale, True's beaked whale, and 
Northern bottlenose whale. The two species of Kogiidae with take 
proposed for authorization for the Project are the dwarf sperm whale 
and pygmy sperm whale. These species are rare for the project area and 
prefer habitat at much deeper water depths than what are found within 
the project area. For instance, the beaked whales and Kogiidae species 
have been sighted in deep waters at or beyond the continental shelf 
break in the New England area (Hayes et al., 2020). The Northern 
bottlenose whales are extremely uncommon or rare in waters of the U.S. 
and are rarely in waters less than 2,000 m deep (Waring et al., 2015).
    For these eight species, the rule would allow for the authorization 
of up to between 6 and 12 takes for each species, by harassment only, 
over the 5-year period. The maximum annual allowable take for these 
species by Level A harassment and Level B harassment, would range from 
0 to 2 and 2 to 4, respectively (combined, this annual take (n=3 to 4) 
equates to approximately <0.1 percent of the stock abundance for each 
species, if each take were considered to be of a different individual), 
with far lower numbers than that expected in the years without 
foundation installation (e.g., years when only HR surveys would be 
occurring). Given this species is considered rare in the area and 
prefers deeper waters, especially for feeding, it is unlikely that 
individuals would remain in the project area for multiple days, and 
therefore the estimated takes likely represent exposures of different 
individuals on one day each annually.
    The number of takes, likely movement patterns of the affected 
species, and the intensity of any Level A or B harassments, combined 
with the availability of alternate nearby foraging habitat suggests 
that the likely impacts would not impact the reproduction or survival 
of any individuals. Some species, such as the common dolphin, are 
gregarious in nature (i.e., travel in large groups) with high densities 
in the project area, which results in a relatively higher amount of 
take. While delphinids may be taken on several occasions, none of these 
species are known to have small home ranges within the project area or 
known to be particularly sensitive to anthropogenic noise. The 
potential for PTS in dolphins and small whales is very low and, if PTS 
does occur, would occur to a limited number of individuals, be of small 
degree, and would be limited to the frequency ranges of the activity 
which does not span across most of their hearing range. Some TTS can 
also occur but, again, it would be limited to the frequency ranges of 
the activity and any loss of hearing sensitivity is anticipated to 
return to pre-exposure conditions shortly after the animals move away 
from the source or the source ceases. Beaked whales are known to be 
particularly sensitive to anthropogenic noise (e.g., Southall et al., 
2017; Clowewiak et al., 2017); however, the project area does not 
contain primary beaked whale habitat and only 2-3 groups of beaked 
whales could be harassed by Project activities. Further, beaked whales 
are deep diver foragers and the shallow-water project area does not 
contain suitable beaked whale foraging habitat. Hence, no foraging 
impacts are anticipated.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on all of the species and stocks addressed in this section.
Harbor Porpoises
    The Gulf of Maine/Bay of Fundy stock of harbor porpoises, which is 
not listed as Threatened or Endangered under the ESA or as Depleted 
under the MMPA, is found predominantly in northern U.S. coastal waters 
(less than 150 m depth) and up into Canada's Bay of Fundy (between New 
Brunswick and Nova Scotia). Although the population trend is not known, 
there are no UMEs or other factors that cause particular concern for 
this stock. No mortality or non-auditory injury are anticipated or 
proposed for authorization for this stock.
    The rule would allow for the authorization of up to 6,549 takes, by 
harassment only, over the five-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment, would be 
136 and 2,507, respectively (combined, this annual take (n=2,643) 
equates to approximately 2.8 percent of the stock abundance, if each 
take were considered to be of a different individual), with far lower 
numbers than that expected in the years without foundation installation 
(e.g., years when only HR surveys would be occurring). Given the number 
of takes, while many of the takes likely represent exposures of 
different individuals on one day a year, some subset of the individuals 
exposed could be taken up to a few times annually.
    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

[[Page 37688]]

driving. In response to pile driving, harbor porpoises are likely to 
avoid the area during construction, as previously demonstrated in 
Tougaard et al. (2009) in Denmark, in Dahne et al. (2013) in Germany, 
and in Vallejo et al. (2017) in the United Kingdom, although a study by 
Graham et al. (2019) may indicate that the avoidance distance could 
decrease over time. However, foundation installation is scheduled to 
occur off the coast of Massachusetts and, given alternative foraging 
areas, any avoidance of the area by individuals is not likely to impact 
the reproduction or survival of any individuals. Given only 1 UXO/MEC 
would be detonated on any given day and only up to 10 UXO/MEC could be 
detonated under the requested 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, TTS is unlikely to impact 
hearing ability in their more sensitive hearing ranges, or the 
frequencies in which they communicate and echolocate. We expect any PTS 
that may occur to be within the very low end of their hearing range 
where harbor porpoises are not particularly sensitive and any PTS would 
be of small magnitude. As such, any PTS would not interfere with key 
foraging or reproductive strategies necessary for reproduction or 
survival.
    While harbor porpoises are likely to avoid the area during any of 
the Project's construction activities, as demonstrated during European 
wind farm construction, the time of year in which work would occur is 
when harbor porpoises are not in highest abundance (May through 
December), and any work that does occur would not result in the 
species' abandonment of the waters off of Massachusetts.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on the Gulf of Maine/Bay of Fundy stock of harbor porpoises.
Phocids (Harbor Seals, Gray Seals, Harp Seals, and Hooded Seal)
    The harbor seal, gray seal, harp seal, and hooded seal are not 
listed under the ESA, nor designated as depleted under the MMPA. There 
are no known areas of specific biological importance in or around the 
project area. A UME been designated for harbor seals and gray seals and 
is described further below. No serious injury or mortality is 
anticipated or proposed for authorization for this species.
    For the four seal species, the rule would allow for the 
authorization of up to between 3 and 24,588 takes for each species, by 
harassment only, over the 5-year period. The maximum annual allowable 
take for these species by Level A harassment and Level B harassment, 
would range from 0 to 17 and 1 to 9,835, respectively (combined, this 
annual take (n=1 to 9,852) equates to approximately <0.1 to 16.1 
percent of the stock abundance, if each take were considered to be of a 
different individual), with far lower numbers than that expected in the 
years without foundation installation (e.g., years when only HR surveys 
would be occurring). Though gray seals and harbor seals are considered 
migratory and no specific feeding areas have been designated in the 
area, the higher number of takes relative to the stock abundance 
suggests that while some of the takes likely represent exposures of 
different individuals on one day a year, it is likely that some subset 
of the individuals exposed could be taken several times annually. 
Similarly, while harp seals are considered migratory and no specific 
feeding areas have been designated in the area, the comparatively 
higher number of takes suggests that takes while many of the takes 
likely represent exposures of different individuals on one day a year, 
some subset of the individuals exposed could be taken up to a few times 
annually. For hooded seals, given this species is considered rare in 
the area, it is unlikely that individuals would remain in the project 
area for multiple days, and therefore the estimated takes likely 
represent exposures of different individuals on one day each annually.
    Harbor, gray, and harp seals occur in Massachusetts waters most 
often in winter (December through May), when most foundation 
installation and UXO/MEC detonations would not occur due to seasonal 
restrictions on conducting these activities).
    Seals are also more likely to be close to shore (e.g., closer to 
the edge of the area ensonified above NMFS' harassment threshold), such 
that exposure to foundation installation would be expected to be at 
comparatively lower levels. Take of these species is noise from pile 
driving, drilling, UXO/MEC detonations, and HRG surveys. As described 
in the Potential Effects to Marine Mammals and Their Habitat section, 
construction of wind farms in Europe resulted in pinnipeds temporarily 
avoiding construction areas but returning within short time frames 
after construction was complete (Carroll et al., 2010; Hamre et al., 
2011; Hastie et al., 2015; Russell et al., 2016; Brasseur et al., 
2010). Effects on pinnipeds that are taken by Level B harassment in the 
project area would likely be limited to reactions such as increased 
swimming speeds, increased surfacing time, or decreased foraging (if 
such activity were occurring). Most likely, individuals would simply 
move away from the sound source and be temporarily displaced from those 
areas (Lucke et al., 2006; Edren et al., 2010; Skeate et al., 2012; 
Russell et al., 2016). Given the low anticipated magnitude of impacts 
from any given exposure (e.g., temporary avoidance), even 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.
    As described above, noise from UXO/MEC detonation is low frequency 
and, while any PTS and TTS that does occur would fall within the lower 
end of pinniped hearing ranges (50 Hz to 86 kHz), PTS and TTS would not 
occur at frequencies where pinniped hearing is most sensitive. In 
summary, any PTS and TSS would be of small degree and not occur across 
the entire, or even most sensitive, hearing range. Hence, any impacts 
from PTS and TTS are likely to be of low severity and not interfere 
with behaviors critical to reproduction or survival.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and occurred across Maine, New Hampshire, 
and Massachusetts until 2020. Based on tests conducted so far, the main 
pathogen found in the seals belonging to that UME was phocine distemper 
virus, although additional testing to identify other factors that may 
be involved in this UME are underway. Currently, the only active UME is 
occurring in Maine with some harbor and gray seals testing positive for 
highly pathogenic avian influenza (HPAI) H5N1. Although elevated 
strandings continue, neither UME (alone or in combination) provide

[[Page 37689]]

cause for concern regarding population-level impacts to any of these 
stocks. For harbor seals, the population abundance is over 61,000 and 
annual M/SI (339) is well below PBR (1,729) (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). For harp seals (no recent UME), the total U.S. fishery-
related mortality and serious injury for this stock is very low 
relative to the stock size and can be considered insignificant and 
approaching zero mortality and serious injury rate (Hayes et al., 
2022). The harp seal stock abundance appears to have stabilized (Hayes 
et al., 2022).
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the proposed mitigation and other information 
presented, Park City Wind's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have preliminarily determined that the take (by harassment only) 
anticipated and proposed for authorization would have a negligible 
impact on harbor, gray, harp, or hooded seals.

Preliminary Negligible Impact Determination

    No mortality or serious injury is anticipated to occur or proposed 
to be authorized. As described in the preliminary analysis above, the 
impacts resulting from the Project's activities cannot be reasonably 
expected to, and are not reasonably likely to, adversely affect any of 
the species or stocks for which take is proposed for authorization 
through effects on annual rates of recruitment or survival. Based on 
the analysis contained herein of the likely effects of the specified 
activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed mitigation and 
monitoring measures, NMFS preliminarily finds that the marine mammal 
take from all of Park City 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/or Level B harassment) of 38 species of marine mammal (with 38 
managed stocks). The maximum number of instances of takes by combined 
Level A and Level B harassments 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 (Table 34). Specific to North Atlantic right whales, NMFS is 
proposing to authorize an amount of annual take (n=111), which, if one 
assumes each estimated instance of take represents a different 
individual, is close to, but does not exceed small numbers. While 
migratory behavior in the project area suggests that many of the 
predicted instances of take of North Atlantic right whales would be to 
different individual whales (and each of those whales would be taken on 
one day annually), given changing distribution of right whales, and 
observations of increased residency times in the broader area, some 
subset of the individual whales exposed could be taken up to a few 
times annually, further lower the percentage of the population actually 
taken.
    For five species, there are no current abundance estimates 
available; hence the percentage of the population taken is unknown. 
However, these constitute rare species and only a small amount of take 
is proposed for authorization each year. For three of these species, no 
more than 5 takes per year are proposed for authorization. For the 
melon-headed whale and Fraser's dolphin, a maximum of 109 and 192 
exposures may occur. This represents one average group size; and it is 
reasonable to assume that 3 or more groups could occur in the North 
Atlantic (one group is \1/3\ of 3 groups). Hence, the amount of take 
for all rare species with unknown populations can reasonably be 
considered a small number.
    Based on the analysis contained herein of the 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 whales. The Permit and Conservation Division 
requested initiation of Section 7 consultation on May 9, 2023, with 
GARFO for the issuance of this proposed rulemaking. NMFS will conclude 
the Endangered Species Act 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, Park 
City Wind 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 a LOA to Park City Wind authorizing take, by Level A 
harassment and Level B harassment, incidental to

[[Page 37690]]

construction activities associated with the New England Wind project 
offshore of Massachusetts for a 5-year period from March 27, 2025, 
through March 26, 2030, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

Request for Additional Information and Public Comments

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning Park City 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.

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. 
Park City Wind is the sole entity that would be subject to the 
requirements in these proposed regulations, and Park City 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 Office of Management and Budget (OMB) 
control number. These requirements have been approved by OMB under 
control number 0648-0151 and include applications for regulations, 
subsequent LOA, and reports. Send comments regarding any aspect of this 
data collection, including suggestions for reducing the burden, to 
NMFS.
    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 federally approved coastal 
management program and will be conducted in a manner consistent with 
such program.
    In June 2020, Park City Wind submitted Federal consistency 
certifications to the Massachusetts Coastal Zone Management's (MA CZM) 
and to the Rhode Island Coastal Resources Management Council (CRMC) 
seeking concurrence that the construction, operations, and 
decommissioning activities of the proposed Project is consistent with 
the enforceable policies of each State's federally-approved coastal 
management program. A revised draft of the consistency certifications 
dated June 2022 were prepared and submitted to the states and is 
appended into Park City Wind's Construction and Operation Plan.
    NMFS has determined that Park City 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 of the 
Atlantic Ocean 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. This 
determination does not excuse Park City Wind from responsibility to 
seek concurrence from the State on other Federal permits, approvals, or 
actions that might be subject to consistency review pursuant to the 
CZMA.

List of Subjects in 50 CFR Part 217

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

    Dated: May 30, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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


Sec.  217.320  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the taking of marine 
mammals that occurs incidental to activities associated with 
construction of the New England Wind project (hereafter referred to as 
the ``Project'') by Park City Wind LLC (hereafter referred to as the 
``LOA Holder''), and those persons it authorizes or funds to conduct 
activities on its behalf in the area outlined in paragraph (b) of this 
section.
    (b) The taking of marine mammals by the LOA Holder 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 0534 and portions of OCS-A 0501 Commercial

[[Page 37691]]

Lease of Submerged Lands for Renewable Energy Development, along export 
cable routes, and at the sea-to-shore transition points south of 
Martha's Vineyard and Barnstable, Massachusetts.
    (c) The taking of marine mammals by the LOA Holder is only 
authorized if it occurs incidental to the following activities 
associated with the Project: installation of up to 129 wind turbine 
generator (WTG) and up to 5 electrical service platform (ESP) 
foundations by impact and vibratory pile driving and drilling, 10 
unexploded ordnances or munitions and explosives of concern (UXO/MEC) 
detonations, and high-resolution geophysical (HRG) site 
characterization surveys.


Sec.  217.321  Effective dates.

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


Sec.  217.322  Permissible methods of taking.

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

                        Table 1 to Paragraph (d)
------------------------------------------------------------------------
    Marine mammal species        Scientific name            Stock
------------------------------------------------------------------------
Atlantic spotted dolphin....  Stenella frontalis..  Western North
                                                     Atlantic.
Atlantic white-sided dolphin  Lagenorhynchus        Western North
                               acutus.               Atlantic.
Blainsville's beaked whale..  Mesoplodon            Western North
                               densirostris.         Atlantic.
Blue whale..................  Balaenoptera          Western North
                               musculus.             Atlantic.
Bottlenose dolphin..........  Tursiops truncatus..  Western North
                                                     Atlantic, offshore.
Clymene dolphin.............  Stenella clymene....  Western North
                                                     Atlantic.
Cuvier's beaked whale.......  Ziphius cavirostris.  Western North
                                                     Atlantic.
Dwarf sperm whale...........  Kogia sima..........  Western North
                                                     Atlantic.
False killer whale..........  Pseudorca crassidens  Western North
                                                     Atlantic.
Fin whale...................  Balaenoptera          Western North
                               physalus.             Atlantic.
Fraser's dolphin............  Lagenodelphis hosei.  Western North
                                                     Atlantic.
Gervais' beaked whale.......  Mesoplodon europaeus  Western North
                                                     Atlantic.
Gray seal...................  Halichoerus grypus..  Western North
                                                     Atlantic.
Harbor porpoise.............  Phocoena phocoena...  Gulf of Maine/Bay of
                                                     Fundy.
Harbor seal.................  Phoca vitulina......  Western North
                                                     Atlantic.
Harp seal...................  Pagophilus            Western North
                               groenlandicus.        Atlantic.
Hooded seal.................  Cystophora cristata.  Western North
                                                     Atlantic.
Humpback whale..............  Megaptera             Gulf of Maine.
                               novaeangliae.
Killer whale................  Orcinus orca........  Western North
                                                     Atlantic.
Long-finned pilot whale.....  Globicephala melas..  Western North
                                                     Atlantic.
Melon-headed whale..........  Peponocephala         Western North
                               electra.              Atlantic.
Minke whale.................  Balaenoptera          Canadian Eastern
                               acutorostrata.        Coastal.
North Atlantic right whale..  Eubalaena glacialis.  Western North
                                                     Atlantic.
Northern bottlenose whale...  Hyperoodon            Western North
                               ampullatus.           Atlantic.
Pantropical spotted dolphin.  Stenella attenuata..  Western North
                                                     Atlantic.
Pygmy killer whale..........  Feresa attenuata....  Western North
                                                     Atlantic.
Pygmy sperm whale...........  Kogia breviceps.....  Western North
                                                     Atlantic.
Risso's dolphin.............  Grampus griseus.....  Western North
                                                     Atlantic.
Rough-toothed dolphin.......  Steno bredanensis...  Western North
                                                     Atlantic.
Sei whale...................  Balaenoptera          Nova Scotia.
                               borealis.
Short-beaked common dolphin.  Delphinus delphis...  Western North
                                                     Atlantic.
Short-finned pilot whale....  Globicephala          Western North
                               macrorhynchus.        Atlantic.
Sowerby's beaked whale......  Mesoplodon bidens...  Western North
                                                     Atlantic.
Sperm whale.................  Physeter              North Atlantic.
                               macrocephalus.
Spinner dolphin.............  Stenella              Western North
                               longirostris.         Atlantic.
Striped dolphin.............  Stenella              Western North
                               coeruleoalba.         Atlantic.
True's beaked whale.........  Mesoplodon mirus....  Western North
                                                     Atlantic.
White-beaked dolphin........  Lagenorhynchus        Western North
                               albirostris.          Atlantic.
------------------------------------------------------------------------

Sec.  217.323  Prohibitions.

    Except for the takings described in Sec.  217.322 and authorized by 
an LOA issued under Sec.  217.326 or Sec.  217.327, it is unlawful for 
any person to do any of the following in connection with the activities 
described in this subpart:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  217.326 
and 217.327;
    (b) Take any marine mammal not specified in Sec.  217.322(d);
    (c) Take any marine mammal specified in the LOA in any manner other 
than as specified in the LOA; or
    (d) Take any marine mammal specified in Sec.  217.322(d), after 
NMFS Office of Protected Resources determines such taking results in 
more

[[Page 37692]]

than a negligible impact on the species or stocks of such marine 
mammals.


Sec.  217.324  Mitigation requirements.

    When conducting the activities identified in Sec. Sec.  217.320 and 
217.322, the LOA Holder must implement the mitigation measures 
contained in this section and any LOA issued under Sec. Sec.  217.326 
and 217.327. These mitigation measures include, but are not limited to:
    (a) General conditions. The following measures apply to the 
Project:
    (1) A copy of any issued LOA must be in the possession of the LOA 
Holder and its designees, all vessel operators, visual protected 
species observers (PSOs), passive acoustic monitoring (PAM) operators, 
pile driver operators, and any other relevant designees operating under 
the authority of the issued LOA;
    (2) The LOA Holder must conduct briefings between construction 
supervisors, construction crews, and the PSO and PAM team prior to the 
start of all in-water construction activities and when new personnel 
join the work, in order to explain responsibilities, communication 
procedures, marine mammal monitoring and reporting protocols, and 
operational procedures. A simple guide must be included with the Marine 
Mammal Monitoring Plan to aid personnel in identifying species if they 
are observed in the vicinity of the project area;
    (3) Prior to and when conducting any in-water activities and vessel 
operations, the LOA Holder personnel and contractors (e.g., vessel 
operators, PSOs) must use available sources of information on North 
Atlantic right whale presence in or near the project area including 
daily monitoring of the Right Whale Sightings Advisory System, and 
monitoring of Coast Guard VHF Channel 16 throughout the day to receive 
notification of any sightings and/or information 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, PSO(s), and PAM operators;
    (4) The LOA Holder must ensure that any visual observations of an 
Endangered Species Act (ESA)-listed marine mammal are communicated to 
on-duty PSOs, PAM operator(s), and vessel captains during the 
concurrent use of multiple project-associated vessels (of any size; 
e.g., construction surveys, crew/supply transfers, etc.);
    (5) The LOA Holder must establish and implement clearance and 
shutdown zones as described in the LOA;
    (6) The LOA Holder must instruct all vessel personnel regarding the 
authority of the PSO(s). Any disagreement between the Lead PSO and the 
vessel operator would only be discussed after shutdown has occurred;
    (7) If an individual from a species for which authorization has not 
been granted, or a species for which authorization has been granted but 
the authorized take number has been met, is observed entering or within 
the relevant Level B harassment zone for a specified activity, pile 
driving (e.g., impact and vibratory), drilling, and HRG acoustic 
sources must shut down immediately, unless shutdown would result in 
imminent risk of injury or loss of life to an individual, pile refusal, 
or pile instability, or be delayed if the activity has not commenced. 
Pile driving, drilling, UXO/MEC detonations, and initiation of HRG 
acoustic sources must not commence or resume until the animal(s) has 
been confirmed to have left the Level B harassment zone or the 
observation time has elapsed with no further sightings;
    (8) Foundation Installation (i.e., impact and vibratory pile 
driving, drilling), UXO/MEC detonation, and HRG survey activities 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 equipment (i.e., vibratory and impact pile driving, 
drilling, UXO/MEC detonations, and HRG surveys that use boomers, 
sparkers, and Compressed High-Intensity Radiated Pulses (CHIRPs));
    (9) In the event that a large whale is sighted or acoustically 
detected that cannot be confirmed as a non-North Atlantic right whale, 
it must be treated as if it were a North Atlantic right whale;
    (10) For in-water construction heavy machinery activities other 
than foundation installation, if a marine mammal is on a path towards 
or comes within 10 meters (m) of equipment, the LOA Holder must cease 
operations until the marine mammal has moved more than 10 m on a path 
away from the activity to avoid direct interaction with equipment;
    (11) All vessels must be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and the LOA 
Holder must report all Maritime Mobile Service Identify (MMSI) numbers 
to NMFS Office of Protected Resources prior to initiating in-water 
activities; and
    (12) Confirmation of all required training must be documented on a 
training course log sheet and reported to NMFS Office of Protected 
Resources.
    (b) Vessel strike avoidance measures. The following measures apply 
to all vessels associated with the Project:
    (1) Prior to the start of the Project's activities involving 
vessels, all vessel operators and crew must receive a protected species 
identification 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 LOA Holder's 
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; and
    (iv) Training related to vessel strike avoidance measures must be 
conducted for all vessel operators and crew prior to the start of in-
water construction activities.
    (2) 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;
    (3) All transiting vessels operating at any speed must have a 
dedicated visual observer on duty at all times to monitor for marine 
mammals within a 180 degree direction of the forward path of the vessel 
(90 degrees port to 90 degree starboards) located at the best vantage 
point for ensuring vessels are maintaining appropriate separation 
distances from marine mammals. Visual observers must be equipped with 
binoculars and 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. Visual 
observers may be 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 vessel use;
    (4) Year-round and when a vessel is in transit, all vessel 
operators must continuously monitor U.S. Coast Guard VHF Channel 16, 
over which North Atlantic right whale sightings are broadcasted. At the 
onset of transiting

[[Page 37693]]

and at least once every 4 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 of the LOA Holder's 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;
    (5) Any observations of any large whale by any LOA Holder staff or 
contractor, including vessel crew, must be communicated immediately to 
on-duty PSOs, PAM operators, and all vessel captains to increase 
situational awareness;
    (6) Nothing in this subpart exempts vessels from applicable speed 
regulations at 50 CFR 224.105;
    (7) All vessels must transit active Slow Zones (i.e., Dynamic 
Management Areas (DMAs) or acoustically-triggered slow zone), and 
Seasonal Management Areas (SMAs) at 10 knots or less;
    (8) All vessels, regardless of vessel size, must immediately reduce 
speed to 10 knots or less when any large whale, mother/calf pairs, or 
large assemblages of non-delphinid cetaceans are observed (within 500 
m) of an underway vessel;
    (9) All vessels, regardless of size, must immediately reduce speed 
to 10 knots or less when a North Atlantic right whale is sighted, at 
any distance, by anyone on the vessel;
    (10) All vessels must comply with North Atlantic right whale 
approach restrictions at 50 CFR 224.103(c).
    (11) All vessels must maintain a minimum separation distance of 100 
m from sperm whales and baleen whales other than North Atlantic right 
whales. If one of these species is sighted within 100 m of a transiting 
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;
    (12) All vessels must maintain a minimum separation distance of 50 
m from all delphinoid cetaceans and pinnipeds with an exception made 
for those that approach the vessel (i.e., bow-riding dolphins). If a 
delphinid cetacean or pinniped is sighted within 50 m of a transiting 
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;
    (13) When a marine mammal(s) is sighted while a vessel is 
transiting, the vessel must take action as necessary to avoid violating 
the relevant separation distances (e.g., attempt to remain parallel to 
the animal's course, 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 shift 
the engine to neutral and not engage the engine(s) until the animal(s) 
is outside and on a path away from the separation 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);
    (14) All vessels underway must not divert or alter course to 
approach any marine mammal. If a separation distance is triggered, any 
vessel underway must avoid abrupt changes in course direction and 
transit at 10 knots or less until the animal is outside the relevant 
separation distance; and
    (15) The LOA Holder must submit a North Atlantic right whale Vessel 
Strike Avoidance Plan 180 days prior to the commencement of vessel use. 
This plan must describe, at a minimum, how PAM, in combination with 
visual observations, would be conducted to ensure the transit corridor 
is clear of right whales and would also provide details on the vessel-
based observer.
    (c) WTG and ESP foundation installation. The following requirements 
apply to impact and vibratory pile driving and drilling activities 
associated with the installation of WTG and ESP foundations:
    (1) Impact pile driving, vibratory pile driving, and drilling 
(i.e., foundation installation) must not occur January 1 through April 
30; Vibratory pile driving must not occur in May and December. Impact 
pile driving and drilling must not be planned in December; however, it 
may occur in the case of unforeseen circumstances and with approval by 
NMFS;
    (2) Monopiles must be no larger than 13-m in diameter. Pin piles 
must be no larger than 4 m in diameter. During all monopile and pin 
pile installation, the minimum amount of hammer energy necessary to 
effectively and safely install and maintain the integrity of the piles 
must be used. Hammer energies must not exceed 6,000 kilojoules (kJ) for 
monopile installations and 3,500 kJ for pin pile installation. No more 
than two monopiles or four pin piles may be installed per day;
    (3) The LOA Holder must utilize a soft-start protocol for each 
impact pile driving event of all foundations by performing 4-6 strikes 
per minute at 10 to 20 percent of the maximum hammer energy, for a 
minimum of 20 minutes;
    (4) Soft-start must occur at the beginning of monopile and pin pile 
impact driving and at any time following a cessation of impact pile 
driving of 30 minutes or longer;
    (5) At least four PSOs must be actively observing marine mammals 
before, during, and after installation of foundation piles (i.e., 
monopiles and pin piles). 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 PAM operator must be actively monitoring for marine mammals with 
PAM before, during, and after impact pile driving;
    (6) PSOs must visually clear (i.e., confirm no marine mammals are 
present) the entire minimum visibility zone and the entire clearance 
zone (when conditions all for visibility of the entire clearance zone) 
for a full 30 minutes immediately prior to commencing pile driving or 
drilling;
    (7) If a marine mammal is detected, visually or acoustically, 
within or about to enter the applicable clearance zones, prior pile 
driving or drilling, activities must be delayed until the animal has 
been visually observed exiting the clearance zone or until a specific 
time period has elapsed with no further sightings. The specific time 
periods are 15 minutes for small odontocetes and pinnipeds and 30 
minutes for all other species;
    (i) For piles installed between May 1-May 14 and November 1-
December 30, if a North Atlantic right whale is observed or 
acoustically detected within 10 km of the pile being driven, pile 
driving must be delayed or stopped (unless activities must proceed for 
human safety or installation feasibility concerns) and may not resume 
until the following day or until the animal is confirmed to have exited 
the zone via aerial or additional vessel surveys;
    (ii) [Reserved]
    (8) The LOA Holder must deploy dual noise abatement systems that 
are capable of achieving, at a minimum, 10 decibel (dB) of sound 
attenuation, during all pile driving and drilling of monopiles and pin 
piles and comply with the following requirements related noise 
abatement:
    (i) A single bubble curtain must not be used unless paired with 
another noise attenuation device;

[[Page 37694]]

    (ii) A big double bubble curtain may be used without being paired 
with another noise attenuation device;
    (iii) The bubble curtain(s) must distribute air bubbles using an 
air flow rate of at least 0.5 m\3\/(min*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must 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;
    (iv) The lowest bubble ring must be in contact with the seafloor 
for the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact;
    (v) No parts of the ring or other objects may prevent full seafloor 
contact;
    (vi) Construction contractors must train personnel in the proper 
balancing of airflow to the ring. Construction contractors must submit 
an inspection/performance report for approval by the LOA Holder within 
72 hours following the performance test. The LOA Holder must then 
submit that report to NMFS Office of Protected Resources; and
    (vii) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (c)(8) must occur prior to impact pile 
driving of monopiles and pin piles. If the LOA Holder uses a noise 
mitigation device in addition to the bubble curtain, the LOA Holder 
must maintain similar quality control measures as described in this 
paragraph (c)(8).
    (9) 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. All clearance zones must be acoustically 
confirmed to be free of marine mammals for 60 minutes before activities 
can begin immediately prior to starting a soft-start of impact pile 
driving. PAM operators will continue to monitor for marine mammals for 
at least 30 minutes after pile driving or drilling concludes;
    (10) For North Atlantic right whales, any visual observation or 
acoustic detection must trigger a delay to the commencement of pile 
driving. 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;
    (11) If a marine mammal is observed entering or within the 
respective shutdown zone after pile driving has begun, the PSO must 
call for a shutdown of pile driving or drilling. The LOA Holder must 
stop pile driving or drilling immediately unless shutdown is not 
practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals or the lead engineer determines there is 
pile refusal or pile instability. In any of these situations, the LOA 
Holder must reduce hammer energy to the lowest level practicable and 
the reason(s) for not shutting down must be documented and reported to 
NMFS;
    (12) 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;
    (13) If pile driving has been shut down due to the presence of a 
marine mammal other than a North Atlantic right whale, pile driving 
must not restart until either the marine mammal(s) has voluntarily left 
the specific clearance zones and has been visually or acoustically 
confirmed beyond that clearance zone, or, when specific time periods 
have elapsed with no further sightings or acoustic detections have 
occurred. The specific time periods are 15 minutes for small 
odontocetes and 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 the LOA Holder 
must use the lowest hammer energy practicable to maintain stability;
    (14) The LOA Holder must conduct sound field verification (SFV) 
during all foundation installation activities:
    (i) The LOA Holder must conduct SFV during all activities 
associated with the first three monopile foundations and the first two 
jacket foundations installed. Subsequent SFV is required should 
additional piles be driven that are anticipated to produce louder sound 
fields than those previously measured;
    (ii) The LOA Holder must conduct SFV during drilling the first time 
it occurs;
    (iii) The LOA Holder must determine source levels, spectra, the 
ranges to the isopleths corresponding to Level A harassment and Level B 
harassment thresholds, and transmission loss coefficient(s);
    (iv) The LOA Holder must perform sound field measurements at a 
minimum of four distances from the pile being driven in one direction 
(towards deepest waters), including, but not limited to, 750 m and the 
modeled Level B harassment zones assuming 10 dB attenuation to verify 
the accuracy of those modeled zones and contribute to improvement of 
the models. At least one additional measurement at a different azimuth 
must be taken to capture sound propagation variability;
    (v) The recordings must be continuous throughout the duration of 
all pile driving and drilling of each foundation monitored;
    (vi) The measurement systems must have a sensitivity appropriate 
for the expected sound levels from pile driving received at the nominal 
ranges throughout the installation of the pile;
    (vii) The frequency range of the system must cover the range of at 
least 20 hertz (Hz) to 20 kilohertz (kHz);
    (viii) The system must be designed to have omnidirectional 
sensitivity and so that the broadband received level of all pile 
driving and drilling activities exceeds the system noise floor by at 
least 10 dB. The dynamic range of the system must be sufficient such 
that at each location, pile driving signals are not clipped and are not 
masked by noise floor;
    (ix) If acoustic field measurements collected during installation 
of foundation piles indicate ranges to the isopleths, corresponding to 
Level A harassment and Level B harassment thresholds, are greater than 
the ranges predicted by modeling (assuming 10 dB attenuation), the LOA 
Holder must implement additional noise mitigation measures prior to 
installing the next foundation. Additional acoustic measurements must 
be taken after each modification;
    (x) 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) after implementing additional noise mitigation 
measures, NMFS Office of Protected Resources may expand the relevant 
harassment, clearance, and shutdown zones and associated monitoring 
protocols;
    (xi) 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), the LOA Holder may request to NMFS Office of Protected

[[Page 37695]]

Resources a modification of the clearance and shutdown zones. For NMFS 
Office of Protected Resources to consider a modification request for 
reduced zone sizes, the LOA Holder must have had to conduct SFV on an 
additional three foundations and that subsequent foundations would be 
installed under conditions that are predicted to produce smaller 
harassment zones than those measured;
    (xii) The LOA Holder must conduct SFV after construction is 
complete to estimate turbine operational source levels based on 
measurements in the near and far-field at a minimum of three locations 
from each foundation monitored. These data must be used to also 
identify estimated transmission loss rates; and
    (xiii) The LOA Holder must submit an SFV plan to NMFS Office of 
Protected Resources for review and approval at least 180 days prior to 
planned start of foundation installation activities.
    (d) UXO/MEC detonations. The following requirements apply to 
Unexploded Ordnances and Munitions and Explosives of Concern (UXO/MEC) 
detonations:
    (1) Upon encountering a UXO/MEC, the LOA Holder may only resort to 
high-order removal (i.e., detonation) if all other means of removal are 
impracticable and this determination must be documented and submitted 
to NMFS;
    (2) UXO/MEC detonations must not occur from December 1 through May 
31, annually; however, the LOA Holder may detonate a UXO/MEC in 
December or May with NMFS' approval on a case-by-case basis;
    (3) UXO/MEC detonations must only occur during daylight hours;
    (4) No more than one detonation can occur within a 24-hour period;
    (5) The LOA Holder must deploy dual noise abatement systems during 
all UXO/MEC detonations and comply with the following requirements 
related to noise abatement:
    (i) A single bubble curtain must not be used unless paired with 
another noise attenuation device;
    (ii) A big double bubble curtain may be used without being paired 
with another noise attenuation device;
    (iii) The bubble curtain(s) must distribute air bubbles using an 
air flow rate of at least 0.5 m\3\/(min*m). The bubble curtain(s) must 
surround 100 percent of the UXO/MEC detonation perimeter throughout the 
full depth of the water column. In the unforeseen event of a single 
compressor malfunction, the offshore personnel operating the bubble 
curtain(s) must make appropriate adjustments to the air supply and 
operating pressure such that the maximum possible sound attenuation 
performance of the bubble curtain(s) is achieved;
    (iv) The lowest bubble ring must be in contact with the seafloor 
for the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact;
    (v) No parts of the ring or other objects may prevent full seafloor 
contact;
    (vi) Construction contractors must train personnel in the proper 
balancing of airflow to the ring. Construction contractors must submit 
an inspection/performance report for approval by the LOA Holder within 
72 hours following the performance test. The LOA Holder must then 
submit that report to NMFS Office of Protected Resources; and
    (vii) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (d)(5) must occur prior to UXO/MEC 
detonations. If the LOA Holder uses a noise mitigation device in 
addition to the bubble curtain, the LOA Holder must maintain similar 
quality control measures as described in this paragraph (d)(5);
    (6) The LOA Holder must conduct SFV during all UXO/MEC detonations 
at a minimum of three locations (at two water depths at each location) 
from each detonation in a direction toward deeper water in accordance 
with the following requirements:
    (i) The LOA Holder must empirically determine source levels (peak 
and cumulative sound exposure level), the ranges to the isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds in meters, and the transmission loss coefficient(s). The LOA 
Holder may estimate ranges to the Level A harassment and Level B 
harassment isopleths by extrapolating from in situ measurements 
conducted at several distances from the detonation location monitored;
    (ii) The measurement systems must have a sensitivity appropriate 
for the expected sound levels from detonations received at the nominal 
ranges throughout the detonation;
    (iii) The frequency range of the system must cover the range of at 
least 20 Hz to 20 kHz; and
    (iv) The system will be designed to have omnidirectional 
sensitivity and will be designed so that the predicted broadband 
received level of all UXO/MEC detonations exceeds the system noise 
floor by at least 10 dB. The dynamic range of the system must be 
sufficient such that at each location, pile driving signals are not 
clipped and are not masked by noise floor.
    (7) The LOA Holder must submit an SFV plan to NMFS Office of 
Protected Resources for review and approval at least 180 days prior to 
planned start of detonation activities;
    (8) LOA Holder must establish and implement clearance zones for 
UXO/MEC detonation using both visual and acoustic monitoring, as 
described in the LOA;
    (9) LOA Holder must use at least two visual PSOs on a platform 
(e.g., 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), LOA Holder must 
deploy a secondary PSO vessel or aircraft. If the clearance is larger 
than 5 km (based on charge weight), an aerial survey must be conducted;
    (10) At least four PSOs must be actively observing marine mammals 
before and after any UXO/MEC detonation. At least two PSOs must be 
stationed and observing on a vessel as close as possible to the 
detonation site and at least two PSOs must be stationed on a secondary, 
PSO-dedicated vessel or aerial platform. Concurrently, at least one 
acoustic monitoring PSO (i.e., passive acoustic monitoring (PAM) 
operator) must be actively monitoring for marine mammals with PAM 
before, during, and after detonation;
    (11) At least one PAM operator must review data from at least 24 
hours prior to a detonation and actively monitor hydrophones for 60 
minutes prior to detonation. All clearance zones must be acoustically 
confirmed to be free of marine mammals for 60 minutes prior to 
commencing a detonation. PAM operators will continue to monitor for 
marine mammals at least 30 minutes after a detonation;
    (12) All clearance zones must be visually confirmed to be free of 
marine mammals for 30 minutes before a detonation can occur. All PSOs 
will also maintain watch for 30 minutes after the detonation event;
    (13) If a marine mammal is observed entering or within the relevant 
clearance zone prior to the initiation of a detonation, detonation must 
be delayed and must not begin until either the marine mammal(s) has 
voluntarily left the specific clearance zones and have been visually 
and acoustically confirmed beyond that clearance zone, or, when 
specific time periods have elapsed with no further sightings or 
acoustic detections. The specific time periods are 15 minutes for small 
odontocetes and 30 minutes for all other marine mammal species; and
    (14) For North Atlantic right whales, any visual observation or 
acoustic

[[Page 37696]]

detection must trigger a delay to the detonation of a UXO/MEC. Any 
large whale sighting by a PSO or detected by a PAM operator that cannot 
be identified by species must be treated as if it were a North Atlantic 
right whale.
    (e) HRG surveys. The following requirements apply to HRG surveys 
operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers, and 
CHIRPS):
    (1) The LOA Holder is required to have at least one PSO on active 
duty per HRG vessel during HRG surveys that are conducted during 
daylight hours (i.e., from 30 minutes prior to civil sunrise through 30 
minutes following civil sunset) and at least two PSOs on active duty 
per vessel during HRG surveys that are conducted during nighttime 
hours;
    (2) The LOA Holder must deactivate acoustic sources during periods 
where no data are being collected, except as determined to be necessary 
for testing. Unnecessary use of the acoustic source(s) is prohibited;
    (3) The LOA Holder is required to ramp-up SBPs prior to commencing 
full power, unless the equipment operates on a binary on/off switch, 
and ensure visual clearance zones are fully visible (e.g., not obscured 
by darkness, rain, fog, etc.) and clear of marine mammals, as 
determined by the Lead PSO, for at least 30 minutes immediately prior 
to the initiation of survey activities using acoustic sources specified 
in the LOA;
    (4) Prior to a ramp-up procedure starting or activating SBPs, the 
operator must notify the Lead PSO of the planned start time. This 
notification time must not be less than 60 minutes prior to the planned 
ramp-up or activation as all relevant PSOs must monitor the clearance 
zone for 30 minutes prior to the initiation of ramp-up or activation;
    (5) Prior to starting the survey and after receiving confirmation 
from the PSOs that the clearance zone is clear of any marine mammals, 
the LOA Holder must ramp-up sources to half power for 5 minutes and 
then proceed to full power, unless the source operates on a binary on/
off switch in which case ramp-up is not required. Ramp-up and 
activation must be delayed if a marine mammal(s) enters its respective 
shutdown zone. Ramp-up and activation may only be reinitiated if the 
animal(s) has been observed exiting its respective shutdown zone or 
until 15 minutes for small odontocetes and pinnipeds, and 30 minutes 
for all other species, has elapsed with no further sightings;
    (6) The LOA Holder must implement a 30-minute clearance period of 
the clearance zones immediately prior to the commencing of the survey 
or when there is more than a 30 minute break in survey activities or 
PSO monitoring. A clearance period is a period when no marine mammals 
are detected in the relevant zone;
    (7) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up or acoustic surveys may not begin until 
the animal(s) has been observed voluntarily exiting its respective 
clearance zone or until a specific time period has elapsed with no 
further sighting. The specific time period is 15 minutes for small 
odontocetes and seals, and 30 minutes for all other species;
    (8) Any large whale sighted by a PSO within 1 km of the SBP that 
cannot be identified by species must be treated as if it were a North 
Atlantic right whale and the LOA Holder must apply the mitigation 
measure applicable to this species;
    (9) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(infrared (IR)/thermal camera), and the Lead PSO has determined that 
the clearance zones are clear of marine mammals, survey operations 
would be allowed to commence (i.e., no delay is required) despite 
periods of inclement weather and/or loss of daylight;
    (10) Once the survey has commenced, the LOA Holder must shut down 
SBPs if a marine mammal enters a respective shutdown zone, except in 
cases when the shutdown zones become obscured for brief periods due to 
inclement weather, survey operations would be allowed to continue 
(i.e., no shutdown is required) so long as no marine mammals have been 
detected. The shutdown requirement does not apply to small delphinids 
of the following genera: Delphinus, Stenella, Lagenorhynchus, and 
Tursiops. If there is uncertainty regarding the identification of a 
marine mammal species (i.e., whether the observed marine mammal belongs 
to one of the delphinid genera for which shutdown is waived), the PSOs 
must use their best professional judgment in making the decision to 
call for a shutdown. Shutdown is required if a delphinid that belongs 
to a genus other than those specified in this paragraph (e)(10) is 
detected in the shutdown zone;
    (11) If SBPs have been shut down due to the presence of a marine 
mammal, the use of SBPs may not commence or resume until the animal(s) 
has been confirmed to have left the Level B harassment zone or until a 
full 15 minutes (for small odontocetes and seals) or 30 minutes (for 
all other marine mammals) have elapsed with no further sighting;
    (12) The LOA Holder must immediately shutdown any SBP acoustic 
source if a marine mammal is sighted entering or within its respective 
shutdown zones. If there is uncertainty regarding the identification of 
a marine mammal species (i.e., whether the observed marine mammal 
belongs to one of the delphinid genera for which shutdown is waived), 
the PSOs must use their best professional judgment in making the 
decision to call for a shutdown. Shutdown is required if a delphinid 
that belongs to a genus other than those specified in paragraph (f)(12) 
is detected in the shutdown zone;
    (13) If a SBP is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, it would be allowed to 
be activated again without ramp-up only if:
    (i) PSOs have maintained constant observation; and
    (ii) No additional detections of any marine mammal occurred within 
the respective shutdown zones.
    (f) Fisheries monitoring surveys. The following measures apply to 
fishery monitoring surveys using trap and trawl gear:
    (1) All captains and crew conducting fishery surveys must be 
trained in marine mammal detection and identification. Marine mammal 
monitoring will be conducted by the trained captain and/or a member of 
the scientific crew before (within 1 nautical mile (nmi) and 15 minutes 
prior to deploying gear), during, and for 15 minutes after haul back;
    (2) Survey gear will be deployed as soon as possible once the 
vessel arrives on station;
    (3) The LOA Holder and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must implement the following 
``move-on'' rule: If marine mammals are sighted within 1 nmi of the 
planned location and 15 minutes before gear deployment, then the LOA 
Holder and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains, as appropriate, must move the vessel away 
from the marine mammal to a different section of the sampling area. If, 
after moving on, marine mammals are still visible from the vessel, the 
LOA Holder and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains must move again or skip the station;
    (4) If a marine mammal is deemed to be at risk of interaction after 
the gear is set, all gear must be immediately removed from the water. 
If marine mammals are sighted before the gear is fully removed from the 
water, the vessel will slow its speed and maneuver the

[[Page 37697]]

vessel away from the animals to minimize potential interactions with 
the observed animal;
    (5) The LOA Holder must maintain visual monitoring effort during 
the entire period of time that gear is in the water (i.e., throughout 
gear deployment, fishing, and retrieval);
    (6) All fisheries monitoring gear must be fully cleaned and 
repaired (if damaged) before each use;
    (7) The LOA Holder's fixed gear must comply with the Atlantic Large 
Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries 
monitoring surveys;
    (8) Trawl tows will be limited to a 20-minute trawl time at 3.0 
knots;
    (9) All gear, trawl or otherwise, will be emptied immediately after 
retrieval within the vicinity of the deck;
    (10) During trawl surveys, vessel crew will open the codend of the 
trawl net close to the deck in order to avoid injury to animals that 
may be caught in the gear;
    (11) During any survey that uses vertical lines, buoy lines will be 
weighted and will not float at the surface of the water and all 
groundlines will consist of sinking line. All groundlines must be 
composed entirely of sinking line. Buoy lines must utilize weak links. 
Weak links must break cleanly leaving behind the bitter end of the 
line. The bitter end of the line must be free of any knots when the 
weak link breaks. Splices are not considered to be knots. The 
attachment of buoys, toggles, or other floatation devices to 
groundlines is prohibited;
    (12) All in-water survey gear will be properly labeled with the 
scientific permit number or identification as LOA Holder-related 
research gear. All labels and markings on the buoys and buoy lines will 
also be compliant with the applicable regulations, and all buoy 
markings will comply with instructions received by the NOAA Greater 
Atlantic Regional Fisheries Office Protected Resources Division; and
    (13) All survey gear will be removed from the water whenever not in 
active survey use (i.e., no wet storage). All reasonable efforts, that 
do not compromise human safety, must be undertaken to recover gear. All 
lost gear must be reported to NOAA Greater Atlantic Regional Fisheries 
Office Protected Resources Division ([email protected]) 
within 24 hours of the documented time of missing or lost gear. This 
report must include information on any markings on the gear and any 
efforts undertaken or planned to recover the gear.


Sec.  217.325  Requirements for monitoring and reporting.

    (a) Protected species observer (PSO) and passive acoustic 
monitoring (PAM) operator qualifications. The LOA Holder must implement 
the following measures applicable to PSOs and PAM operators:
    (1) The LOA Holder must use independent, dedicated, qualified PSOs 
and PAM operators, meaning that the PSOs and PAM operators must be 
employed by a third-party observer provider, must have no tasks other 
than to conduct observational effort, collect data, and communicate 
with and instruct relevant vessel crew with regard to the presence of 
protected species and mitigation requirements;
    (2) PSOs and PAM operators must have successfully attained a 
bachelor's degree from an accredited college or university with a major 
in one of the natural sciences, a minimum of 30 semester hours or 
equivalent in the biological sciences, and at least one undergraduate 
course in math or statistics. The educational requirements may be 
waived if the PSO or PAM operator has acquired the relevant skills 
through a suitable amount of alternate experience. Requests for such a 
waiver shall be submitted to NMFS Office of Protected Resources and 
must include written justification containing alternative experience. 
Alternate experience that may be considered includes, but is not 
limited to: previous work experience conducting academic, commercial, 
or government sponsored marine mammal visual and/or acoustic surveys; 
or previous work experience as a PSO/PAM operator; and the PSO/PAM 
operator should demonstrate good standing and consistently good 
performance of PSO/PAM duties;
    (3) PSOs and PAM operators must successfully complete the required 
training within the last 5 years, including obtaining a certificate of 
course completion;
    (4) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving targets 
on the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable); ability to conduct field 
observations and collect data according to the assigned protocols; 
sufficient training, orientation, or experience with the construction 
operation to provide for personal safety during observations; writing 
skills sufficient to document observations, including but not limited 
to, the number and species of marine mammals observed, the dates and 
times of when in-water construction activities were conducted, the 
dates and time when in-water construction activities were suspended to 
avoid potential incidental take of marine mammals from construction 
noise within a defined shutdown zone, and marine mammal behavior; and 
the ability to communicate orally, by radio, or in-person, with project 
personnel to provide real-time information on marine mammals observed 
in the area;
    (5) All PSOs and PAM operators must be approved by the NMFS Office 
of Protected Resources. The LOA Holder must submit PSO resumes for NMFS 
Office of Protected Resources review and approval at least 90 days 
prior to commencement of in-water construction activities requiring 
PSOs and PAM operators. Resumes must include dates of training and any 
prior NMFS Office of Protected Resources 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 Office of Protected Resources shall be allowed 3 weeks to approve 
PSOs from the time that the necessary information is received by NMFS 
Office of Protected Resources, after which PSOs meeting the minimum 
requirements will automatically be considered approved;
    (6) 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;
    (7) At least one PSO on active duty for each activity (i.e., 
foundation installation, UXO/MEC detonation activities, and HRG 
surveys) must be designated as the ``Lead PSO''. The Lead PSO must have 
a minimum of 90 days of at-sea experience working in an offshore 
environment and is required to have no more than 18 months elapsed 
since the conclusion of their last at-sea experience;
    (8) PAM operators must complete specialized training for operating 
PAM systems and must demonstrate familiarity with the PAM system on 
which they must be working; and
    (9) PSOs may work as PAM operators and vice versa, pending NMFS-
approval; however, they may only perform one role at any one time and 
must not exceed work time restrictions, which will be tallied 
cumulatively.
    (b) General PSO and PAM operator requirements. The following 
measures apply to PSOs and PAM operators and must be implemented by the 
LOA Holder:

[[Page 37698]]

    (1) PSOs must monitor for marine mammals prior to, during, and 
following pile driving, drilling, UXO/MEC detonation activities, and 
during HRG surveys that use sub-bottom profilers (with specific 
monitoring durations and needs described in paragraphs (c) through (e) 
of this section, respectively).
    (2) PAM operator(s) must acoustically monitor for marine mammals 
prior to, during, and following all pile driving, drilling, and UXO/MEC 
detonation activities. PAM operators may be located on a vessel or 
remotely on-shore but must have the appropriate equipment (i.e., 
computer station equipped with a data collection software system 
available wherever they are stationed) and be in real-time 
communication with PSOs and transiting vessel captains;
    (3) All PSOs must be located at the best vantage point(s) on any 
platform, in order to obtain 360 degree visual coverage of the entire 
clearance and shutdown zones around the activity area, and as much of 
the Level B harassment zone as possible;
    (4) All on-duty visual PSOs must remain in contact with the on-duty 
PAM operator, who would monitor the PAM systems for acoustic detections 
of marine mammals in the area, regarding any animal detection that 
might be approaching or found within the applicable zones no matter 
where the PAM operator is stationed (e.g., onshore or on a vessel);
    (5) During all visual observation periods during the Project, PSOs 
must use high magnification (25x) binoculars, standard handheld (7x) 
binoculars, and the naked eye to search continuously for marine 
mammals. During all pile driving and drilling, at least one PSO on the 
primary pile driving vessel must be equipped with functional Big Eye 
binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; 
height control); these must be pedestal mounted on the deck at the best 
vantage point that provides for optimal sea surface observation and PSO 
safety;
    (6) During all acoustic monitoring periods during the Project, PAM 
operators must use PAM systems as approved by NMFS;
    (7) During periods of low visibility (e.g., darkness, rain, fog, 
poor weather conditions, etc.), PSOs must use alternative technology 
(i.e., infrared or thermal cameras) to monitor the clearance and 
shutdown zones as approved by NMFS;
    (8) PSOs and PAM operators must not exceed 4 consecutive watch 
hours on duty at any time, must have a 2-hour (minimum) break between 
watches, and must not exceed a combined watch schedule of more than 12 
hours in a 24-hour period;
    (9) Any PSO or PAM operator has the authority to call for a delay 
or shutdown of project activities;
    (10) PSOs must remain in real-time contact with the PAM operators 
and construction personnel responsible for implementing mitigation 
(e.g., delay to pile driving or UXO/MEC detonation) to ensure 
communication on marine mammal observations can easily, quickly, and 
consistently occur between all on-duty PSOs, PAM operator(s), and on-
water Project personnel; and
    (11) The LOA Holder is required to use available sources of 
information on North Atlantic right whale presence to aid in monitoring 
efforts. These include daily monitoring of the Right Whale Sightings 
Advisory System, consulting of the WhaleAlert app, and monitoring of 
the Coast Guard's VHF Channel 16 throughout the day to receive 
notifications of any sightings and information associated with any 
Dynamic Management Areas, to plan construction activities and vessel 
routes, if practicable, to minimize the potential for co-occurrence 
with North Atlantic right whales.
    (c) PSO and PAM operator requirements during WTG and ESP foundation 
installation. The following measures apply to PSOs and PAM operators 
during WTG and ESP foundation installation and must be implemented by 
the LOA Holder:
    (1) If PSOs cannot visually monitor the minimum visibility zone at 
all times using the equipment described in paragraphs (b)(3) and (4) of 
this section, pile driving operations must not commence or must 
shutdown if they are currently active;
    (2) All PSOs must begin monitoring 60 minutes prior to pile 
driving, during, and for 30 minutes after the activity. Pile driving 
must only commence when the minimum visibility zone is fully visible 
(e.g., not obscured by darkness, rain, fog, etc.) and the clearance 
zones are clear of marine mammals for at least 30 minutes, as 
determined by the Lead PSO, immediately prior to the initiation of pile 
driving. PAM operators must assist the visual PSOs in monitoring by 
conducting PAM activities 60 minutes prior to any 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 pile driving;
    (3) The LOA Holder must conduct PAM for at least 24 hours 
immediately prior to pile driving activities;
    (4) During use of any real-time PAM system, at least one PAM 
operator must be designated to monitor each system by viewing data or 
data products that would be streamed in real-time or in near real-time 
to a computer workstation and monitor;
    (5) The PAM operator must inform the Lead PSO(s) on duty of animal 
detections approaching or within applicable ranges of interest to the 
pile driving activity via the data collection software system (i.e., 
Mysticetus or similar system) who will be responsible for requesting 
that the designated crewmember implement the necessary mitigation 
procedures (i.e., delay or shutdown); and
    (6) The LOA Holder must prepare and submit a Marine Mammal 
Monitoring Plan to NMFS Office of Protected Resources for review and 
approval at least 180 days before the start of any pile driving. The 
plan 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 and PSO monitoring 
protocols for foundation installation activities.
    (d) PSO requirements during UXO/MEC detonations. The following 
measures apply to PSOs during HRG surveys using SBPs and must be 
implemented by the LOA Holder:
    (1) All on-duty visual PSOs must remain in contact with the on-duty 
PAM operator, who would monitor the PAM systems for acoustic detections 
of marine mammals in the area, regarding any animal detection that 
might be approaching or found within the applicable zones no matter 
where the PAM operator is stationed (e.g., onshore or on a vessel);
    (2) If PSOs cannot visually monitor the minimum visibility zone at 
all times using the equipment described in paragraphs (b)(3) and (4) of 
this section; UXO/MEC operations must not commence or must shutdown if 
they are currently active;
    (3) All PSOs must begin monitoring 60 minutes prior to UXO/MEC 
detonation, during, and for 30 minutes after the activity. UXO/MEC 
detonation must only commence when the minimum visibility zone is fully 
visible (e.g., not obscured by darkness, rain, fog, etc.) and the 
clearance zones are clear of marine mammals for at least 30 minutes, as 
determined by the Lead PSO, immediately prior to the initiation of 
detonation. PAM operators must assist the visual PSOs in monitoring by

[[Page 37699]]

conducting PAM activities 60 minutes prior to any UXO/MEC detonation, 
during, and after for 30 minutes for the appropriate size PAM clearance 
zone. The entire 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 initiation of detonation;
    (4) For North Atlantic right whales, any visual or acoustic 
detection must trigger a delay to the commencement of UXO/MEC 
detonation. In the event that a large whale is sighted or acoustically 
detected that cannot be confirmed by species, it must be treated as if 
it were a North Atlantic right whale;
    (5) The LOA Holder must conduct PAM for at least 24 hours 
immediately prior to foundation installation and UXO/MEC detonation 
activities;
    (6) During use of any real-time PAM system, at least one PAM 
operator must be designated to monitor each system by viewing data or 
data products that would be streamed in real-time or in near real-time 
to a computer workstation and monitor;
    (7) The LOA Holder must use a minimum of one PAM operator to 
actively monitor for marine mammals before, during, and after UXO/MEC 
detonation. The PAM operator must assist visual PSOs in ensuring full 
coverage of the clearance and shutdown zones. The PAM operator must 
inform the Lead PSO(s) on duty of animal detections approaching or 
within applicable ranges of interest to the activity occurring via the 
data collection software system (i.e., Mysticetus or similar system) 
who will be responsible for requesting that the designated crewmember 
implement the necessary mitigation procedures (i.e., delay or 
shutdown);
    (8) PAM operators must be on watch for a maximum of 4 consecutive 
hours, followed by a break of at least 2 hours between watches, and may 
not exceed a combined watch schedule of more than 12 hours in a single 
24-hour period;
    (9) The LOA Holder must prepare and submit a Marine Mammal 
Monitoring Plan to NMFS Office of Protected Resources for review and 
approval at least 180 days before the start of any detonation. The plan 
must include final UXO/MEC detonation project design (e.g., number and 
type of UXO/MECs, removal method(s), charge weight(s), anticipated 
start date, etc.) and all information related to PAM and PSO monitoring 
protocols for UXO/MEC activities; and
    (10) A Passive Acoustic Monitoring Plan (``PAM Plan'') must be 
submitted to NMFS Office of Protected Resources for review and approval 
at least 180 days prior to the planned start of foundation installation 
and prior to the start of any UXO/MEC detonation(s). The authorization 
to take marine mammals would be contingent upon NMFS Office of 
Protected Resources approval of the PAM Plan.
    (e) PSO requirements during HRG surveys. The following measures 
apply to PSOs during HRG surveys using SBPs and must be implemented by 
the LOA Holder:
    (1) Between four and six PSOs must be present on every 24-hour 
survey vessel and two to three PSOs must be present on every 12-hour 
survey vessel;
    (2) At least one PSO must be on active duty monitoring during HRG 
surveys conducted during daylight (i.e., from 30 minutes prior to civil 
sunrise through 30 minutes following civil sunset) and at least two 
PSOs must be on activity duty monitoring during HRG surveys conducted 
at night;
    (3) PSOs on HRG vessels must begin monitoring 30 minutes prior to 
activating SBPs during the use of these acoustic sources, and for 30 
minutes after use of these acoustic sources has ceased;
    (4) During daylight hours when survey equipment is not operating, 
the LOA Holder must ensure that visual PSOs conduct, as rotation 
schedules allow, observations for comparison of sighting rates and 
behavior with and without use of the specified acoustic sources. Off-
effort PSO monitoring must be reflected in the monthly PSO monitoring 
reports; and
    (5) Any acoustic monitoring would complement visual monitoring 
efforts and would cover an area of at least the Level B harassment zone 
around each acoustic source.
    (f) Reporting. The LOA Holder must comply with the following 
reporting measures:
    (1) Prior to initiation of in-water project activities, the LOA 
Holder must demonstrate in a report submitted to NMFS Office of 
Protected Resources that all required training for the LOA Holder 
personnel (including the vessel crews, vessel captains, PSOs, and PAM 
operators) has been completed;
    (2) The LOA Holder must use a standardized reporting system during 
the effective period of the LOA. All data collected related to the 
Project must be recorded using industry-standard software that is 
installed on field laptops and/or tablets.
    (3) For all monitoring efforts and marine mammal sightings, the 
following information must be collected and reported:
    (i) 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., Beaufort sea state, tide state, 
water depth); All marine mammal sightings, regardless of distance from 
the construction activity; Species (or lowest possible taxonomic level 
possible); 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 or specified 
HRG equipment and estimated time entered or spent within the Level A 
harassment and/or Level B harassment zone(s); Activity at time of 
sighting (e.g., vibratory installation/removal, impact pile driving, 
construction survey), use of any noise attenuation device(s), and 
specific phase of activity (e.g., ramp-up of HRG equipment, HRG 
acoustic source on/off, soft-start for pile driving, active pile 
driving, etc.); Marine mammal occurrence in Level A harassment or Level 
B harassment zones; 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.
    (ii) [Reserved]
    (4) If a marine mammal is acoustically detected during PAM 
monitoring, the following information must be recorded and reported to 
NMFS Office of Protected Resources:
    (i) Location of hydrophone (latitude & longitude; in Decimal 
Degrees) and site name; Bottom depth and depth of recording unit (in 
meters); Recorder (model & manufacturer) and platform type (i.e., 
bottom-mounted, electric glider, etc.), and instrument ID of the 
hydrophone and recording platform (if

[[Page 37700]]

applicable); Time zone for sound files and recorded date/times in data 
and metadata (in relation to Universal Coordinated Time (UTC); i.e., 
Eastern Standard Time (EST) time zone is UTC-5); Duration of recordings 
(start/end dates and times; in International Organization for 
Standardization (ISO) 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ); 
Deployment/retrieval dates and times (in ISO 8601 format); Recording 
schedule (must be continuous); Hydrophone and recorder sensitivity (in 
dB re 1 microPascal ([mu]Pa)); Calibration curve for each recorder; 
Bandwidth/sampling rate (in Hz); Sample bit-rate of recordings; and 
Detection range of equipment for relevant frequency bands (in meters).
    (ii) [Reserved]
    (5) Information required for each detection, the following 
information must be noted:
    (i) Species identification (if possible); Call type and number of 
calls (if known); Temporal aspects of vocalization (date, time, 
duration, etc.; date times in ISO 8601 format); Confidence of detection 
(detected, or possibly detected); Comparison with any concurrent visual 
sightings; Location and/or directionality of call (if determined) 
relative to acoustic recorder or construction activities; Location of 
recorder and construction activities at time of call; Name and version 
of detection or sound analysis software used, with protocol reference; 
Minimum and maximum frequencies viewed/monitored/used in detection (in 
Hz); and Name of PAM operator(s) on duty.
    (ii) [Reserved]
    (6) The LOA Holder must compile and submit weekly reports to NMFS 
Office of Protected Resources that document the daily start and stop of 
all pile driving, UXO/MEC detonations, and HRG survey associated with 
the Project; the start and stop of associated observation periods by 
PSOs; details on the deployment of PSOs; a record of all detections of 
marine mammals (acoustic and visual); any mitigation actions (or if 
mitigation actions could not be taken, provide reasons why); and 
details on the noise attenuation system(s) used and its performance. 
Weekly reports are due on Wednesday for the previous week (Sunday-
Saturday) and must include the information required under this section. 
The weekly report must also identify which turbines become operational 
and when (a map must be provided). This weekly report must also 
identify when, what charge weight size, and where UXO/MECs are 
detonated (a map must also be provided). Once all foundation pile 
installation and UXO/MEC detonations are completed, weekly reports are 
no longer required by the LOA Holder;
    (7) The LOA Holder must compile and submit monthly reports to NMFS 
Office of Protected Resources that include a summary of all information 
in the weekly reports, including project activities carried out in the 
previous month, vessel transits (number, type of vessel, and route), 
number of piles installed, all detections of marine mammals, and any 
mitigative action taken. Monthly reports are due on the 15th of the 
month for the previous month. The monthly report must also identify 
which turbines become operational and when (a map must be provided). 
This weekly report must also identify when, what charge weight size, 
and where UXO/MECs are detonated (a map must also be provided). Once 
foundation installation and UXO/MEC detonations are completed, monthly 
reports are no longer required;
    (8) The LOA Holder must submit a draft annual report to NMFS Office 
of Protected Resources no later than 90 days following the end of a 
given calendar year. The LOA Holder must provide a final report within 
30 days following resolution of comments on the draft report. The draft 
and final reports must detail the following information:
    (i) The total number of marine mammals of each species/stock 
detected and how many were within the designated Level A harassment and 
Level B harassment zone(s) with comparison to authorized take of marine 
mammals for the associated activity type; Marine mammal detections and 
behavioral observations before, during, and after each activity; What 
mitigation measures were implemented (i.e., number of shutdowns or 
clearance zone delays, etc.) or, if no mitigative actions was taken, 
why not; Operational details (i.e., days and duration of impact and 
vibratory pile driving, days and duration of drilling, days and number 
of UXO/MEC detonations, days and amount of HRG survey effort, etc.); 
Any PAM systems used; The results, effectiveness, and which noise 
attenuation systems were used during relevant activities (i.e., impact 
and vibratory pile driving, drilling, and UXO/MEC detonations); 
Summarized information related to situational reporting; Any other 
important information relevant to the Project, including additional 
information that may be identified through the adaptive management 
process; and
    (ii) The final annual report must be prepared and submitted within 
30 calendar days following the receipt of any comments from NMFS Office 
of Protected Resources on the draft report. If no comments are received 
from NMFS Office of Protected Resources within 60 calendar days of NMFS 
Office of Protected Resources' receipt of the draft report, the report 
must be considered final.
    (9) The LOA Holder must submit its draft 5-year report to NMFS 
Office of Protected Resources on all visual and acoustic monitoring 
conducted within 90 calendar days of the completion of activities 
occurring under the LOA. A 5-year report must be prepared and submitted 
within 60 calendar days following receipt of any NMFS Office of 
Protected Resources comments on the draft report. If no comments are 
received from NMFS Office of Protected Resources within 60 calendar 
days of NMFS Office of Protected Resources receipt of the draft report, 
the report shall be considered final;
    (10) The LOA Holder must submit a SFV plan at least 180 days prior 
to the planned start of vibratory and impact pile driving, drilling, 
and UXO/MEC detonations. At minimum, the plan must describe how the LOA 
Holder would ensure that the first three monopile and two jacket (using 
pin piles) foundation installation sites selected for SFV are 
representative of the rest of the monopile and pin pile installation 
sites. In the case that these sites/scenarios are not determined to be 
representative of all other monopile/pin pile installation sites, the 
LOA Holder must include information on how additional sites/scenarios 
would be selected for SFV. The plan must also include methodology for 
collecting, analyzing, and preparing SFV data for submission to NMFS 
Office of Protected Resources. The plan must describe how the 
effectiveness of the sound attenuation methodology would be evaluated 
based on the results. The LOA Holder must also provide, as soon as they 
are available but no later than 48 hours after each installation, the 
initial results of the SFV measurements to NMFS Office of Protected 
Resources in an interim report after each monopile for the first three 
piles, after two jacket foundation using pin piles are installed, and 
after each UXO/MEC detonation; and
    (i) The SFV plan must also include how operational noise would be 
monitored. These data must be used to identify estimated transmission 
loss rates. Operational parameters (e.g., direct drive/gearbox 
information, turbine rotation rate), characteristics about the UXO/MEC 
(e.g., charge weight, size, type of charge), as well as sea state 
conditions and information on nearby anthropogenic activities (e.g.,

[[Page 37701]]

vessels transiting or operating in the area) must be reported;
    (ii) The LOA Holder must provide the initial results of the SFV 
measurements to NMFS Office of Protected Resources in an interim report 
after each foundation installation for the first three monopile 
foundation piles and two jacket foundations (all pin piles), and for 
each UXO/MEC detonated, as soon as they are available, but no later 
than 48 hours after each completed installation event and/or 
detonation. The LOA Holder must also provide interim reports on any 
subsequent SFV on foundation piles within 48 hours. The interim pile 
driving SFV report must include hammer energies used during pile 
driving, 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); and
    (iii) The final results of SFV of foundation installations and UXO/
MEC detonations must be submitted as soon as possible, but no later 
than within 90 days following completion of all foundation installation 
of monopiles and jackets (pin piles) and all necessary detonation 
events. 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) in mean, median, maximum and minimum levels;
    (B) 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 sound levels reported must 
be in median and linear average (i.e., average in linear space), and in 
dB;
    (C) Local environmental conditions, such as wind speed, 
transmission loss data collected on-site (or the sound velocity 
profile), baseline pre- and post-activity ambient sound levels 
(broadband and/or within frequencies of concern); A description of 
depth and sediment type, as documented in the Construction and 
Operation Plan (COP), at the recording and foundation installation and 
UXO/MEC detonation locations;
    (D) The extents of the Level A harassment and Level B harassment 
zone(s); Hammer energies required for pile installation and the number 
of strikes per pile; and Charge weights and other relevant 
characteristics of UXO/MEC detonations;
    (E) Hydrophone equipment and methods (i.e., recording device, 
bandwidth/sampling rate, distance from the monopile/pin pile and/or 
UXO/MEC where recordings were made; depth of recording device(s)); 
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; and
    (F) Spatial configuration of the noise attenuation device(s) 
relative to the pile and/or UXO/MEC charge; A description of the noise 
abatement system and operational parameters (e.g., bubble flow rate, 
distance deployed from the pile and/or UXO/MEC, etc.) and any action 
taken to adjust the noise abatement system.
    (11) The LOA Holder must submit situational reports if the 
following circumstances occur:
    (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, the LOA Holder 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 later 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 large whale occurs during vessel 
transit, the following information must be recorded and reported to 
NMFS Office of Protected Resources:
    (A) Time, date, and location (latitude/longitude; in Decimal 
Degrees); The vessel's activity, heading, and speed; Beaufort sea 
state, water depth (meters), and visibility; Marine mammal 
identification to the best of the observer's ability (e.g., North 
Atlantic right whale, whale, dolphin, seal); Initial distance and 
bearing to marine mammal from vessel and closest point of approach; and 
Any avoidance measures taken in response to the marine mammal sighting.
    (B) [Reserved]
    (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 at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates;
    (iv) In the event that the personnel involved in the Project 
discover a stranded, entangled, injured, or dead marine mammal, the LOA 
Holder must immediately report the observation to the NMFS Office of 
Protected Resources, the NMFS Greater Atlantic Stranding Coordinator 
for the New England/Mid-Atlantic area (866-755-6622), and the U.S. 
Coast Guard within 24 hours. If the injury or death was caused by a 
project activity, the LOA Holder must immediately cease all activities 
until NMFS Office of Protected Resources is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
LOA. NMFS Office of Protected Resources may impose additional measures 
to minimize the likelihood of further prohibited take and ensure MMPA 
compliance. The LOA Holder may not resume their activities until 
notified by NMFS Office of Protected Resources. The report must include 
the following information:
    (A) Time, date, and location (latitude/longitude; in Decimal 
Degrees) of the first discovery (and updated location information if 
known and applicable); Species identification (if known) or description 
of the animal(s) involved; Condition of the animal(s) (including 
carcass condition if the animal is dead); Observed behaviors of the 
animal(s), if alive; If available, photographs or video footage of the 
animal(s); and General circumstances under which the animal was 
discovered.
    (B) [Reserved]
    (v) In the event of a vessel strike of a marine mammal by any 
vessel associated with the Project, the LOA Holder must immediately 
report the strike incident to the NMFS Office of Protected Resources 
and the NMFS Greater Atlantic Regional Fisheries Office within and no 
later than 24 hours. The LOA Holder must immediately cease all on-water 
activities until NMFS Office of Protected Resources is able to review 
the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the LOA. NMFS Office of Protected Resources

[[Page 37702]]

may impose additional measures to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The LOA Holder may not 
resume their activities until notified by NMFS Office of Protected 
Resources. The report must include the following information:
    (A) Time, date, and location (latitude/longitude; in Decimal 
Degrees) of the incident; Species identification (if known) or 
description of the animal(s) involved; Vessel's speed leading up to and 
during the incident; Vessel's course/heading and what operations were 
being conducted (if applicable); Status of all sound sources in use; 
Description of avoidance measures/requirements that were in place at 
the time of the strike and what additional measures were taken, if any, 
to avoid strike; Environmental conditions (e.g., wind speed and 
direction, Beaufort sea state, cloud cover, visibility) immediately 
preceding the strike; Estimated size and length of animal that was 
struck; Description of the behavior of the marine mammal immediately 
preceding and following the strike; If available, description of the 
presence and behavior of any other marine mammals immediately preceding 
the strike; Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and to the extent practicable, 
photographs or video footage of the animal(s).
    (B) [Reserved]
    (12) LOA Holder must report any lost gear associated with the 
fishery surveys to the NOAA Greater Atlantic Regional Fisheries Office 
Protected Resources Division ([email protected]) as 
soon as possible or within 24 hours of the documented time of missing 
or lost gear. This report must include information on any markings on 
the gear and any efforts undertaken or planned to recover the gear.


Sec.  217.326  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
the LOA Holder 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 March 26, 2030, the expiration date of 
this subpart.
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the LOA Holder 
must apply for and obtain a modification of the LOA as described in 
Sec.  217.327.
    (d) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (e) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under the regulations of this subpart.
    (f) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.


Sec.  217.327  Modifications of Letter of Authorization.

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

[FR Doc. 2023-11814 Filed 6-6-23; 8:45 am]
BILLING CODE 3510-22-P